IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 1ST JULY 2008 / 10TH ASHADHA 1930 Crl.Rev.Pet.No. 887 of 2008() ----------------------------- CRA.5/2004 of III ADDL. SESSIONS COURT, THRISSUR CC.36/2001 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, THRISSUR .................... REVN. PETITIONER: APPELLANT/ACCUSED ----------------------------------------------- SAJEEVAN, S/O.VASU, PUTHUKULANGARA HOUSE KOTTEKKAD, KUTTUR VILLAGE, THRISSUR DIST. BY ADV. SRI.MADHU RADHAKRISHNAN RESPONDENTS: RESPONDENTS/COMPLAINANT --------------------------------------------------- 1. BABU, S/O.SANKU, CHENTHRA HOUSE PUTHURKARA, AYYANTHOLE VILLAGE, THRISSUR DIST. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 BY ADV. SRI.P.K.ANIL SRI. P. RAVINDRA BABU, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/07/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.R.P.NO. 887/2008 : 2 : ORDER ON Crl.M.A. NO. 2680/2008 IN CRL.R.P.NO. 887/2008 DISMISSED 01.07.2008 sd/- V. RAMKUMAR, JUDGE. /True Copy/ P.A to Judge. V.RAMKUMAR, J. ====================== Crl.R.P. No. 887 of 2008 ======================= Dated, this the 1st day of July,2008. O R D E R Heard both sides. 2. In this Revision petition filed under Section 397 read with Section 401 Cr.P.C. the petitioner who was the accused in C.C. No. 36 of 2001 on the file of the Judicial First Class Magistrate-I, Thrissur challenges the conviction entered and the sentence passed against him for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). 3. I heard the learned counsel for the Revision Petitioner and the learned Public Prosecutor and also the learned counsel for the complainant. 4. The learned counsel appearing for the Revision Petitioner re-iterated the contentions in support of the Revision. The courts below have concurrently held that the cheque in question was drawn by the petitioner in favour of the complainant on the drawee bank, that the cheque was validly presented to the bank, that it was dishonoured for reasons which fall under Section 138 of the Act, that the complainant made a demand for payment by a notice in time in accordance with clause (b) of the proviso to Section 138 of the Act Crl.R.P. No. 887 of 2008 -:2:- and that the Revision Petitioner/accused failed to make the payment within 15 days of receipt of the statutory notice. Both the courts have considered and rejected the defence set up by the revision petitioner while entering the above finding. The said finding has been recorded on an appreciation of the oral and documentary evidence. I do not find any error, illegality or impropriety in the finding so recorded concurrently by the courts below. The conviction was thus rightly entered against the petitioner. 5. What now remains to be considered is as to the sentence to be imposed on the revision petitioner. The lower appellate court has sentenced the revision petitioner to imprisonment till the rising of the court and to pay Rs.1,35,000/- as compensation to the 1st respondent and on default to pay the compensation, to undergo simple imprisonment for three months. It is admitted that based on the same cause of action, the 1st respondent had instituted a suit as O.S. No. 470 of 2000 before the Sub Court, Thrissur and that suit has ended in a decree and execution proceedings are pending and delivery of the property is said to have been effected in execution of the decree. That is a matter which the petitioner may have to work out before the civil court. He cannot avoid depositing the compensation amount of Crl.R.P. No. 887 of 2008 -:3:- Rs.1,35,000/- which in turn is the amount arising out of the cheque amount of Rs.1,25,000/-. Accordingly, the sentence imposed on the revision petitioner is modified as follows:- The petitioner shall deposit the sum of Rs.1,35,000/- (Rupees one lakh and thirty five thousand only) before the trial court by way of fine. The fine amount shall be paid to the complainant as compensation under Section 357(1) Cr.P.C. In case the petitioner does not deposit the fine amount within the period of one month, he shall undergo simple imprisonment for three months by way of default sentence. It is open to the petitioner to work out his remedy before a civil court as provided under Section 357 (5) Cr.P.C. In the result, this Revision is disposed of confirming the conviction entered but modifying the sentence imposed on the revision petitioner. Dated, this the 1st day of July,2008. V. RAMKUMAR, JUDGE. rv