IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 15TH JANUARY 2009 / 25TH POUSHA 1930 Crl.Rev.Pet.No. 161 of 2009() ----------------------------- CRA.237/2005 of ADDL. SESSIONS COURT (ADHOC), TRIVANDRUM CC.199/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT-V, TRIVANDRUM .................... REVN. PETITIONER(S): --------------------- R.ASHOKAN, S/O.RAGHAVAN, AGED 54, NANDHYANCODE VEEDU. AMBALATHINKARA, THEKKUMBHAGAM, KAZHAKUTTAM PO., THIRUVANANTHAPURAM. BY ADV. SRI.J.S.AJITHKUMAR RESPONDENT(S): --------------- 1. S.VIJAYAKUMARI, SUCHITHRA BHAVAN KARIYIL, KAHZHAKUTTOM, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. By PP SRI MUHAMMED PUZHAKKARA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 161 OF 2009 ............................................ DATED THIS THE 15th DAY OF JANUARY, 2009 ORDER Revision petitioner is the accused and first respondent, the complainant in C.C.199 of 2003 on the file of Judicial First Class Magistrate-V, Thiruvananthapuram. Revision petitioner was convicted and sentenced to simple imprisonment for seven months and a compensation of Rs.2,00,000/- and in default, simple imprisonment for two months for the offence under Section 138 of N.I.Act. Revision petitioner challenged the conviction and sentence before Sessions Court, Thiruvananthapuram in Crl.A.237 of 2005. 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 but sentence may be modified. Learned counsel also filed Crl.M.A.487 of 2009 stating that he is not challenging the conviction but only seeks modification of the sentence. 3. On going through the judgments of the courts below, I do not Crrp 161/2009 2 find any reason to interfere with the conviction. Evidence establish that revision petitioner borrowed Rs.2,00,000/- from first respondent and towards it discharge, issued Ext.P1 cheque and the cheque when presented for encashment, was dishonoured for want of sufficient funds. It is also proved that 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. So long as the sentence is not varied or modified against the interest of first respondent, it is not necessary to issue notice to first respondent. Learned Magistrate awarded a substantive sentence of simple imprisonment for two months, in addition to compensation for the amount covered by the dishonoured cheque which was confirmed by learned Sessions Judge. Considering the entire facts and circumstances of the case, interest of justice will be met, if the sentence is modified to imprisonment till rising of court, in addition to a fine, with a direction to pay compensation out of the fine realised to first respondent . 5. Revision petition is allowed in part. Conviction of revision petitioner for the offence under Section 138 of N.I.Act is confirmed. Sentence is modified. Revision petitioner is sentenced to Crrp 161/2009 3 imprisonment till rising of court and a fine of Rs.2,10,000/- and in default, simple imprisonment for three months. On realisation of fine, Rs.2,05,000/- is to be paid to first respondent as compensation under Section 357(1)(b)of Code of Criminal Procedure. Revision petitioner is granted three months time from today to pay the fine. He is directed to appear before the Magistrate on 15.4.2009. M.SASIDHARAN NAMBIAR, JUDGE lgk