IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 13TH JANUARY 2009 / 23RD POUSHA 1930 Crl.Rev.Pet.No. 119 of 2009() ----------------------------- CRA.605/2007 of ADDL.SESSIONS COURT-II, KOZHIKODE ST.3202/2007 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOZHIKODE .................... REVN. PETITIONER(S): --------------------- P.PADMAVATHI, W/O.VASUDEVAN, PADIKKAL ILLAM, KALARIVATHUKKAL VALAPATTANAM, KANNUR. BY ADV. SMT.T.V.NEEMA RESPONDENT(S): --------------- 1. K.RAJAGOPALAN NAIR, S/O.APPUNNI NAIR ARADHANA,PO.KURUVANOOR, KAKKODI VIA., KURUVATTOOR AMSOM, DESOM, KOZHIKODE. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI MUHAMMED PUZHAKKARA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 119 OF 2009 ............................................ DATED THIS THE 13th DAY OF JANUARY, 2009 ORDER Revision petitioner is the accused and first respondent, the complainant in S.T.3203 of 2007 on the file of Judicial First Class Magistrate-II, Kozhikode. Revision petitioner was convicted and sentenced to imprisonment till rising of court and a compensation of Rs.1,30,000/- and in default, simple imprisonment for two months for the offence under Section 138 of N.I.Act. Revision petitioner challenged the conviction before Sessions Court, Kozhikode in Crl.A.605 of 2007. Learned Additional Sessions Judge, on reappreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision petition. 2. Learned counsel appearing for revision petitioner was heard. Learned counsel submitted that in view of the concurrent findings of the courts below and the evidence on record, revision petitioner is not challenging the conviction and is only seeking six months time to pay the compensation. 3. On going through the judgments of courts below, I do not find any reason to interfere with the conviction. Evidence establish that revision petitioner borrowed Rs.2,55,000/- and towards its repayment, issued five cheques, out of which Ext.P1 cheque dated CRRP 119/2009 2 24.1.2005 was for Rs.50,000/-, Ext.P2 cheque dated 7.2.2005 was for Rs.5000/- and Ext.P3 cheque for Rs.75,000/- is dated 14.2.2005, the total being Rs.1,30,000/- and the cheques were dishonoured under Ext.P4 to P6 when presented for encashment. Evidence also establish that the dishonour was for want of sufficient funds and first respondent had complied with all the statutory formalities provided under Section 138 and 142 of N.I.Act. In such circumstances, conviction of revision petitioner for the offence under Section 138 of N.I.Act is perfectly legal. 4. Then the question is with regard to the sentence. Learned Magistrate sentenced the revision petitioner to imprisonment till rising of court and a compensation, which was only for the amount covered by the dishonoured cheques. But learned Magistrate awarded the default sentence for the compensation, which is not legal in view of the declaration of law by Apex Court that when compensation is awarded under Section 357(3) of Code of Criminal Procedure, there cannot be a default sentence. Therefore to that extent, sentence is to be modified. 5. Revision petition is allowed in part. Conviction of revision petitioner for the offence under Section 138 of N.I.Act is confirmed and sentence of imprisonment till rising of court and a compensation of Rs.1,30,000/-, the amount covered by the dishonoured cheques, is CRRP 119/2009 3 also confirmed. The default sentence is set aside. Revision petitioner is granted six months time from today to pay the compensation. She is directed to appear before the Magistrate on 13.7.2009. M.SASIDHARAN NAMBIAR, JUDGE lgk