IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 21ST JANUARY 2009 / 1ST MAGHA 1930 Crl.Rev.Pet.No. 1347 of 2006() ------------------------------ CRA.581/2004 of II ADDL. SESSIONS COURT, PALAKKAD ST.1965/2001 of JUDL. MAGISTRATE OF FIRST CLASS COURT, PATTAMBI .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- V. MUSTHAFA @ MUTHU, AGED 36 YEARS, S/O. HAMSA HAJI, VARAMANGALATHU HOUSE, KARAKKAD,KONDOORKKARA P.O.,KALLADIPATTA VIA.679313 BY ADV. SRI.V.JOHN SEBASTIAN RALPH RESPONDENT(S): RESPONDENTS/COMPLAINANT: ------------------------------------------------------ 1. V. VIDHYADHARAN, AGED ABOUT 40 YEARS, S/O. KRISHNAN VAIDYAR, VAZHAYIL VEEDU P.O., VADANAMKUKRISSY-679124, BY HIS POWER OF ATTORNEY SHRI SHAHUL HAMEED, S/O. MUHAMMED, PULAKKAL VEEDU, MULOORKKARA DESOM, KALLADIPATTA AMSOM,OTTAPALAM TALUK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.MUHAMMED PUZHAKKARA SRI.E.R.VENKATESWARAN FOR R1 SRI.R.SREEHARI FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/01/2009, THE COURT ON 21/01/2009 PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 1347 OF 2006 =========================== Dated this the 21st day of January,2009 ORDER Revision petitioner is the accused and first respondent the complainant in S.T.1965/2001 on the file of Judicial First Class Magistrate, Pattambi. Revision petitioner was convicted and sentenced for the offence under section 138 of Negotiable Instruments Act. Revision petitioner challenged the conviction and sentence before Sessions Court, Palakkad in Crl.A.581/2004. Learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction but modified the sentence to simple imprisonment for two months and a compensation of Rs.2,10,000/- and in default simple imprisonment for two months. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for the revision petitioner was heard. 3. Learned counsel appearing for revision CRRP 1347/2006 2 petitioner in the light of the evidence on record submitted that revision petitioner is not challenging the conviction but the sentence may be modified. Learned counsel submitted that when compensation is awarded under sub section (3) of Section 357 of Code of Criminal Procedure there cannot be a default sentence and to that extent the sentence is illegal. 4. On going through the judgments of the courts below, I find no reason to interfere with the conviction. 5. Evidence establish that revision petitioner borrowed Rs.2,00,000/- from first respondent and issued Ext.P1 cheque towards its repayment. It is also proved that the cheque was dishonoured for want of sufficient funds. There is also no dispute regarding the fact that first respondent had complied with all the statutory formalities provided under section 138 and 142 of Negotiable Instruments Act. Conviction of revision petitioner for the offence under section 138 of Negotiable Instruments Act in such circumstance is perfectly legal. CRRP 1347/2006 3 6. Then the question is regarding the sentence. Learned Additional Sessions Judge modified the sentence to simple imprisonment for two months in addition to a compensation of Rs.2,10,000/- to be paid to first respondent under section 357(3) of the Code of Criminal Procedure with a default sentence of simple imprisonment for two months. As rightly pointed out by the learned counsel appearing for revision petitioner when compensation is awarded under section 357(3), there cannot be a default sentence. To that extent the sentence is illegal. Considering the entire facts and circumstances of the case, interest of justice will be met, if the substantive sentence is modified to imprisonment till rising of court. Learned counsel appearing for revision petitioner submitted that as directed by this court while suspending the sentence revision petitioner had already deposited Rs.75,000/- before the learned Magistrate. Revision is allowed in part. Conviction of the revision petitioner for the offence under section 138 of Negotiable Instruments Act is CRRP 1347/2006 4 confirmed. Sentence is modified. Revision petitioner is sentenced to imprisonment till rising of court. The direction for payment of compensation of Rs.2,10,000/- to first respondent under section 357(3) of the Code of Criminal Procedure is also confirmed. But the default sentence provided for the compensation is set aside. If revision petitioner has deposited any amount before the trial court as directed by this court or the appellate court, the deposit is to be treated as towards the compensation and he need only deposit the balance and first respondent is entitled to receive it towards the compensation. Revision petitioner is directed to appear before the Judicial First Class Magistrate, Pattambi on 23.3.2009. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006