IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 19TH NOVEMBER 2008 / 28TH KARTHIKA 1930 Crl.Rev.Pet.No. 3707 OF 2008() ------------------------------ CRA.351/2008 OF ADDL. SESSIONS COURT (ADHOC-II), ERNAKULAM S.T.4608/2006 OF JUDL. FIRST CLASS MAGISTRATE COURT-II, N.PARAVUR .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: -------------------------------------- MURALI, S/O.PHALGUNAN, VELLYAMPADATH HOUSE, CHERAI MURI, PALLIPPURAM. BY ADV. SMT.R.SUDHA RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. R.SUNILKUMAR, S/O.BALAKRISHNAN, VELLUMTHARA HOUSE, PALLIPPURAM. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/11/2008 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3707 OF 2008 ------------------------------------------ Dated this the 19th day of November, 2008 O R D E R Revision petitioner is the accused and first respondent the complainant in S.T. 4608 of 2006 on the file of Judicial First Class Magistrate, N. Paravur. Revision petitioner was convicted and sentenced to simple imprisonment for one year and a compensation of Rs.50,000/- for the offence under section 138 of Negotiable Instruments Act. Petitioner challenged the conviction before Sessions Court, Ernakulam in Crl.Appeal 351 of 2008. When the appeal was taken up, the counsel appearing for appellant was absent. Learned Additional Sessions Judge after perusing the records and reappreciating the evidence confirmed the conviction but modified the sentence to simple imprisonment for three months in addition to compensation of Rs.50,000/-. Revision is filed challenging the conviction and sentence. 2. Though in the revision dismissal of the appeal without hearing the counsel was challenged, learned counsel appearing for petitioner at the time of hearing revision submitted that the CRRP3707/08 2 revision petitioner is not challenging the conviction, but the sentence may be modified and revision petitioner may be granted four months time to pay the fine covered by the dishonoured cheque. 3. As declared by the Apex Court in Shyam Deo Pandey v. State of Bihar ((1971) 1 SCC 855) and Bani Singh and others v. State of U.P. ((1996)4 SCC 720) when appellant fails to appear before the appellate court on the posting day, a criminal appeal cannot be dismissed for default. It can only be disposed on merits after going through the records and reappreciating the evidence. That exactly was done by the learned Sessions Judge. Therefore on that ground there is no reason to interfere with the judgment of the learned Sessions Judge. 4. The evidence establish that Ext.P1 cheque was issued by the revision petitioner towards repayment of Rs.50,000/- borrowed and the cheque was dishonoured for want of sufficient funds and first respondent has complied with all the statutory formalities provided under section 138 and 142 of N.I. Act. In such circumstances conviction of the petitioner for the offence under section 138 of N.I. Act is perfectly legal. CRRP3707/08 3 5. So long as the sentence is not to be varied or modified against the interest of first respondent, it is not necessary to issue notice to him. Considering the nature of the offence interest of justice would be met if the sentence is modified to imprisonment till rising of the Court and a fine of Rs.50,000/- and in default simple imprisonment for two months. Revision is allowed in part. Conviction is confirmed. Sentence is modified. Petitioner is sentenced to imprisonment till rising of Court and fine of Rs.50,000/- and in default simple imprisonment for two months. On realisation of the fine it is to be paid to first respondent as compensation under section 357 (1) of Code of Criminal Procedure. Revision petitioner is granted four months time from today to pay the fine. Petitioner is directed to appear before the Magistrate on 20.3.2009. M. SASIDHARAN NAMBIAR, JUDGE Okb/-