IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 28TH JANUARY 2010 / 8TH MAGHA 1931 Crl.Rev.Pet.No. 342 of 2010() ----------------------------- CRA.47/2009 of SESSIONS COURT, KOTTAYAM ST.434/2008 of JUDL.MAGISTRATE OF FIRST CLASS-I, KANJIRAPPALLY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- RIYASKHAN @ ANIL,THENAMAKKAL HOUSE, KANJIRAPPALLY.PO,KOTTAYAM. BY ADV. SRI.T.I.ABDUL SALAM SRI.JAI GEORGE RESPONDENT(S): RESPONDENTS/COMPLAINANT -------------------------------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. 2. SUDHA PRIYADARSHINI,PUNNATHANAM HOUSE, KOOVAPPALLY VILLAGE,KOTTAYAM. R1 BY P.P.SRI.P.R.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl.R.P.No.342 of 2010 ------------------------------- Dated this the 28th day of January, 2010 ORDER This revision petition is preferred by the sole accused in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act. 2. The second respondent herein had preferred a complaint against the revision petitioner with the allegation that the accused had borrowed a sum of Rs.2,00,000/- (Rupees two lakhs only) from the complainant on 12.2.2006 promising to repay the amount as and when demanded by the complainant. When the complainant demanded the amount Exhibit .P1 cheque dated 12.3.2006 was issued which was dishonoured when presented for encashment . After complying with the formalities, the complainant approached the trial court and filed a complaint and the trial court took cognizance and instituted S.T.No.434/2006. During the trial, the complainant was examined as PW1 and Exts.P1 to P11 documents were produced. No evidence adduced from the side of the defence either oral or documentary. The trial court found that the revision petitioner/accused is guilty under Section 138 of the Negotiable Instruments Act and accordingly convicted and sentenced to undergo simple imprisonment for four months and further directed to pay a sum of Rs.2,00,000/- to the complainant as compensation under Section 357(3) of Cr.P.C.. The 2 default sentence was fixed as two months simple imprisonment. Challenging the above order of conviction and sentence, the revision petitioner though preferred an appeal as Crl.A.47/2009 the same was disposed of confirming the conviction and make certain modifications with respect to the offence. The above judgments are challenged in this revision petition. 3. The learned counsel for the revision petitioner submitted that the amount which borrowed from the complainant has been paid back in the presence of an independent witnesses and as such there was no liability towards the complainant and the case was filed by misusing the cheque leaf which was already entrusted with the complainant. The lower appellate court as well as the trial court has considered the above defence. It is to be noted that the accused/revision petitioner did not dispute in Exhibit .P1 cheque and the signature contained therein. The above defence was set up by the accused/revision petitioner before the trial court, for the first time. Though the formal statutory notice was send by the complainant and received by the accused, no reply was given to the said notice. On the other hand the complainant by producing the documents which mentioned above, including Exhibit .P1 cheque and Exhibit .P2 letter, established the transaction and the execution of the cheque. Apart from bare pleading of the accused that the amount was repaid to the 3 complainant, no evidence was adduced to substantiate the case. It was under the above circumstances the trial court after having due consideration of the materials and evidence on record came into the conclusion that the accused is guilty of the offence charged against him. Following the same material and evidence on record the lower appellate court also came into the conclusion that the accused is guilty and thereby confirmed the conviction. I find no reason to interfere with the above clear finding of the trial court as well as the lower appellate court. No question of law raised regarding the propriety, legality and correctness of the judgments of the court below. Therefore, no merits in the revision petition and accordingly the same is liable to be dismissed. 4. The learned counsel for the revision petitioner submitted that some time may be granted for making the payment as directed by the court below. In this juncture, it is relevant to note that, lower appellate court has already granted one month's time to the revision petitioner, from the date of its judgment to surrender and to receive the sentence and making the payment. Till that time, the revision petitioner did not pay the amount and thereafter three months' time are over. Therefore, I am not inclined to grant time of three months as requested by the counsel for the revision petitioner. 5. However, as a last chance 30 days time can be granted to the 4 petitioner to appear before the trial court to receive the sentence and to make the payment as directed by the court below. As indicated earlier since three months' are already over from the date fixed by the lower appellate court and considering the facts that the transaction was taken place during the year 2006 and so far no amount has paid to the complainant, while granting 30 days time the revision petitioner is directed to pay an additional amount of Rs.10,000/- . 6. Thus the revision petition is disposed of directing the revision petitioner to appear before the trial court on 1.3.2010 and to pay a sum of Rs.2,10,000/- being the compensation payable to the complainant under Section 357(3) of Cr.P.C. in default to undergo simple imprisonment for two months. If there is any failure on the part of the petitioner in appearing before the trial court and making the payment as directed, the trial court is free to take coercive steps to secure the presence of the accused and to execute the sentence. V.K.Mohanan, Judge cms