IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 23RD JANUARY 2009 / 3RD MAGHA 1930 Crl.Rev.Pet.No. 299 of 2009() ----------------------------- CRA.158/2007 of ADDL.SESSIONS COURT,-I, MAVELIKKARA CC.302/2005 of JUDL.MAGISTRATE OF FIRST CLASS, MAVELIKKARA .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- SINDHU ALEX, W/O.ALEX, LAHAYIL HOUSE, PUNNAMOODU, MAVELIKKARA BY ADV. SMT.A.SALINI LAL RESPONDENT(S)/RESPONDENT/COMPLAINANT: --------------- 1. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2. BABU OOMMEN, S/O.IYPE OOMMEN, MAMMOOTTIL HOUSE, KAITHA NORTH, CHETTIKULANGARA, MAVELIKKARA R1 BY PUBLIC PROSECUTOR MUHAMMED PUZHAKKARA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/01/2009THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.R.P.NO.299 OF 2009 ------------------------------------------ Dated 23rd January 2009 O R D E R Revision petitioner is the accused and second respondent, the complainant in C.C.302/2005 on the file of Judicial First Class Magistrate, Mavelikkara. Revision petitioner was convicted and sentenced to simple imprisonment for six months and a compensation of Rs.50,000/- for the offence under Section 138 of Negotiable Instruments Act. Revision petitioner challenged conviction before Additional Sessions court, Mavelikkara in Crl.A.158/2007. Learned Additional Sessions Judge on re-appreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for revision petitioner was heard. 3. Learned counsel submitted that in view of the evidence on record and concurrent findings of fact CRRP 299/09 2 revision petitioner is not challenging the conviction and is only seeking modification of the sentence and time for payment of the amount. 4. On going through the judgments of the courts below, I find no reason to interfere with the conviction. Evidence establish that revision petitioner borrowed Rs.90,000/- from second respondent and issued Ext.P1 cheque towards its repayment which was dishonoured for want of sufficient funds when presented for encashment. It is also established that first respondent had complied with all statutory formalities provided under Sections 138 and 142 of Negotiable Instruments Act. In such circumstances, conviction of the revision petitioner for the offence under Section 138 of Negotiable Instruments Act is perfectly legal. 5. Then the question is regarding the sentence. So long as the sentence is not altered or modified against the interest of first respondent, it is not necessary to issue notice to first respondent. As per the sentence awarded by the learned Magistrate as confirmed by Sessions Judge first respondent is to get compensation of Rs.50,000/-. Learned Magistrate awarded a substantive sentence of simple imprisonment for six months. Considering CRRP 299/09 3 all the relevant facts, interest of justice will be met, if the sentence is modified to imprisonment till rising of court and a fine of Rs.70,000/- and in default simple imprisonment for two months. On realisation of fine, it is to be paid to second respondent as compensation under Section 357(1)(b) of Code of Criminal Procedure. Revision is allowed in part. Conviction of revision petitioner for the offence under Section 138 of Negotiable Instruments Act is confirmed. Sentence is modified to imprisonment till rising of court and fine of Rs.70,000/- and in default simple imprisonment for two months. On realisation of fine, it is to be paid to second respondent as compensation under Section 357(1)(b) of Code of Criminal Procedure. Revision petitioner is granted six months time to pay the fine. Learned counsel appearing for revision petitioner submitted that revision petitioner was arrested and remanded to Sub jail, Alappuzha and thereafter shifted to Central Jail, Thiruvananthapuram. If revision petitioner has already undergone sentence for one day or more, she shall be released forthwith, if she is not wanted in any other case. On request of the learned counsel it is made clear that revision petitioner is permitted to pay the fine which was directed to be paid to complainant CRRP 299/09 4 as compensation directly to second respondent and produce the receipt before the Magistrate and establish that the fine, which is to be paid as compensation was paid. M.SASIDHARAN NAMBIAR, JUDGE. uj.