IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 Crl.Rev.Pet.No. 723 of 2001() ----------------------------- CRA.102/1998 of ADDL.SESSIONS COURT, THODUPUZHA CC.115/1993 of CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA .................... REVN. PETITIONER(S): --------------------- K.P.GANGADHARAN NAIR, KAVUMKOTTULLATHIL VEEDU, KIDANGOOR, PATHANAMTHITTA DIST. BY ADV. SRI.MVS.NAMBOOTHIRY RESPONDENT(S): --------------- 1. RAVEENDRAN, S/O.KRISHNA PILLAI, UDUMBANAL VEEDU, THODUPUZHA KARA, THODUPUZHA VILLAGE. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.S.K.MURALEEDHARA KAIMAL PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28.7.2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- Crl.R.P.No. 723 of 2001 ----------------------------------------- Dated this the 28th July, 2009 O R D E R This revision petition arises from the conviction and sentence passed against the revision petitioner for offence under Section 138 of the Negotiable Instruments Act. Revision petitioner was concurrently convicted and sentenced to undergo simple imprisonment for 4 months and pay a fine of Rs.35,000/- and in default to undergo simple imprisonment for 2 months and hence, this revision. 2. According to prosecution, on 26.6.1992, the accused issued a cheque for Rs.29,000/- in favour of the complainant- respondent in discharge of a legally enforceable debt and the cheque was drawn on the State Bank of Travancore from an account maintained by the accused. The cheque, on Crl.RP.723/01 2 presentation to the bank, was dishonoured for want of sufficient funds. Thereafter, a notice was issued to the accused demanding payment and informing dishonour. The accused received the notice, but did not pay the amount and hence, a complaint was filed under Section 138 of the N.I Act. 3. The prosecution examined PW1 and marked Exhibits P1 to P3 on its side. The accused examined DW1 and DW2 and marked Exhibit D1 on his side. On an evaluation of the evidence, both the courts found that the prosecution proved its case and the accused is found guilty of offence under Section 138 of the N.I Act. 4. Learned counsel for petitioner submitted that he has no serious contention to raise in respect of the conviction entered against the revision petitioner. He is confining his argument to the sentence imposed. It is submitted that the petitioner is aged 79 years and the sentence imposed is to undergo four months simple imprisonment and to pay a fine of Rs.35,000/- and in default to undergo simple imprisonment for 2 months. Crl.RP.723/01 3 5. The amount covered by the cheque is only Rs.29,000/-, but the fine imposed by the trial court is for Rs.35,000/-. The trial court is not empowered to impose a sentence of fine, which is more than Rs.5,000/-. Therefore, the sentence of fine cannot be sustained and it has to be set aside, it is submitted. However, he also submitted that the petitioner has deposited RS.14,500/- after the conviction towards the fine imposed and he is also prepared to pay the balance and hence, the imprisonment of 4 months may be altered and an order of compensation may be passed, instead of the fine. On hearing both sides and considering various aspects, I find that it is only just and proper to modify the sentence. Hence, the following order is passed: (i) The conviction passed against the revision petitioner is confirmed. (ii) The sentence imposed against the revision petitioner is modified in supersession of the sentence already passed as follows: The petitioner is sentenced to undergo imprisonment till rising of the court and he shall pay Rs.35,000/- as compensation Crl.RP.723/01 4 to PW1 under Section 357(3) Cr.P.C. (The amount deposited will be adjusted) (iii) The petitioner shall surrender before the trial court within one week from the date of receipt of a copy of this order. The Criminal Revision Petition is partly allowed. K.HEMA, JUDGE vgs. Crl.RP.723/01 5 K.HEMA, J. ------------------------------ Crl.R.P.NO.723 of 2001 ------------------------------ O R D E R 28.7.2009