IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 24TH SEPTEMBER 2008 / 2ND ASWINA 1930 Crl.Rev.Pet.No. 3262 OF 2008() ------------------------------ CRA.383/2006 OF ADDL. SESSIONS COURT-II, MAVELIKKARA CC.626/2005 OF JUDL. FIRST CLASS MAGISTRATE COURT, KAYAMKULAM .................... REVN. PETITIONER/APPELLANT/ACCUSED: --------------------- MADHAVAN JAYACHANDRAN, AGED 65 YEARS, KOVASSERI HOUSE, ATHINADU SOUTH, KATTILKADAVU.P.O, KARUNAGAPPALLY. BY ADV. SRI.S.MOHANAN RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: ----------------- 1. C. JAYAPALAN, CHAITHANYA HOUSE, CHIRAKADAVOM MURI, KAYAMKULAM VILLAGE. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. C.M. NAZER FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO.3262 OF 2008 ------------------------------------------ Dated this the 24th day of September, 2008 O R D E R Petitioner was concurrently convicted and sentenced for offence under section 138 of Negotiable Instruments Act. First respondent is the complainant. He filed the complaint alleging that towards repayment of Rs.3,00,000/- borrowed by petitioner, he issued Ext.P1 cheque drawn in his account maintained in Karunagappally branch of Indian Bank and when the cheque was presented for encashment, it was dishonoured for want of sufficient funds and in spite of the notice sent demanding the amount covered by the cheque, petitioner did not pay the amount and instead sent a reply raising false contentions and thereby committed the offence under section 138 of Negotiable Instruments Act. Petitioner pleaded not guilty. Learned Judicial First Class Magistrate , Kayamkulam convicted the petitioner for the offence under section 138 of Negotiable Instruments Act and sentenced him to simple imprisonment for one year and a compensation of Rs.3,00,000/- and in default, simple imprisonment for two months. Petitioner challenged the conviction and sentence before the Sessions Court, Mavelikkara CRRP3262/08 2 in criminal appeal 383 of 2006. Learned Sessions Judge on re- appreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision filed under section 397 and 401 of Code of Criminal Procedure. 2. Learned counsel appearing for petitioner submitted that petitioner is not challenging the conviction, but the sentence may be modified. Learned counsel submitted that he is prepared to pay the compensation and because of his financial conditions he may be granted three months time to pay the compensation. 3. On going through the judgment of the Courts below, it is clear that Ext.P1 cheque was issued by petitioner towards repayment of the amount due and when the cheque was presented for encashment, it was dishonoured for want of sufficient funds and first respondent has complied with all the statutory formalities. Therefore conviction of the petitioner for offence under section 138 of Negotiable Instruments Act is perfectly legal and correct. 4. Then the only question is regarding the sentence. So long as sentence is not to be varied or modified against the interest of first respondent, it is not necessary to issue notice to him. CRRP3262/08 3 5. Learned Magistrate sentenced the petitioner to simple imprisonment for one year and also compensation for the amount covered by the dishonoured cheque. Interest of justice will be met if the sentence is modified to imprisonment till rising of the Court and a fine of Rs.3,10,000/-, and in default simple imprisonment for three months. Petitioner is granted three months time to pay the fine amount. On realisation of the fine amount, Rs.3,01,000/- is to be paid to the complainant as compensation under section 357(1) of Code of Criminal Procedure. Revision is partly allowed. Conviction for offence under section 138 of Negotiable Instruments Act is confirmed. Sentence is modified to imprisonment till rising of the Court and a fine of Rs.3,10,000/- to be paid within three months from today and in default simple imprisonment for three months. On realisation of fine amount, Rs.3,01,000/- is to be paid to first respondent as compensation. Petitioner is directed to appear before the learned Magistrate on 29.12.2008. M. SASIDHARAN NAMBIAR, JUDGE Okb/-