IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 5TH OCTOBER 2010 / 13TH ASWINA 1932 Crl.Rev.Pet.No. 2916 of 2010() ------------------------------ CRA.170/2009 of ADDL. SESSIONS COURT (ADHOC-2), THRISSUR CC.1989/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KUNNAMKULAM. .................... REVISION PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------------------------------------------- P.I.PADMANABHAN, S/O.ITTARI, PALLIPURAM HOUSE, NEDUPUZHA P.O., THRISSUR. BY ADVS. SRI.P.SANTHOSH (PODUVAL), SMT.R.RAJITHA RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE: ---------------------------------------------------------------------------------------- 1. M/S.DRD SECURITIES LTD., BHADHANI COMPLEX, THRISSUR ROAD, KUNNAMKULAM P.O.,PIN - 680 503, REPRESENTED BY ITS DIRECTOR P.DIGI VARGHESE. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT. C.M.CHARISMA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 05/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------------------ Crl.R.P. No. 2916 of 2010 ---------------------------------------- Dated the 5th October, 2010 ORDER The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the revision petitioner as he is aggrieved by the conviction and sentence imposed against him as per the impugned judgment. 2. The case of the complainant is that the wife of the revision petitioner approached the complainant company for obtaining hire purchase loan in respect of her vehicle and the revision petieron herein stood as a guarantor for the loan transaction. When the instalments became due, the accused approached the complainant and issued a cheque for Rs.30,448/- which when presented for encashment was dishonoured for the reason “account closed” and the revision petitioner/accused miserably failed to repay the cheque amount in spite of a formal notice caused to issue by him. With the said allegation, the complainant approached the court of Judicial First Class Magistrate, Kunnamkulam, by CRL.R.P 2916/10 -:2:- filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted C.C.No.1989/2005. During the course of trial, PW1 was examined and produced Exts.P1 to P9 as documentary evidence. From the side of the defence, no evidence, either oral or documentary was produced. After evaluation of the evidence and the materials on record, the trial court has found that Ext.P2 cheque was issued towards the discharge of a legally enforceable debt that due to the complainant and accordingly, the trial court held that the complainant has succeeded in establishing the allegation against the revision petitioner-accused and found that the revision petitioner-accused is guilty. Consequently, the accused is convicted under section 138 of the N.I.Act. On such conviction, the trial court sentenced the revision petitioner-accused to pay a fine of Rs.30,448/- and the default sentence is fixed as simple imprisonment for a period of three months. It is also ordered that on realisation of the fine amount, the same shall be paid to the complainant as compensation under section 357(1) (b) CRL.R.P 2916/10 -:3:- Cr.P.C. 3. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 5.8.2010 in Crl.A.No.170/2009, the court of Addl. Sessions Judge, Thrissur (Fast Track.II-Adhoc), dismissed the appeal confirming the conviction and sentence. It is the above judgments of the trial court as well as the lower appellate court challenged in this Crl.R.P. 4. Reiterating the contention taken by the defence during the trial and appellate stages, the learned counsel submitted that the complainant has not established the transaction, execution and issuance of the cheque and therefore, the courts below are absolutely wrong in convicting the revision petitioner-accused imposing sentence against him. The trial court as well as the lower appellate court has concurrently found in favour of the complainant and against the revision petitioner-accused. Though the revision petitioner is heard elaborately, nothing is brought out to take a different view to interfere CRL.R.P 2916/10 -:4:- with the concurrent findings of the courts below. All the contentions are based upon the facts and evidence on record which were elaborately considered by the courts below. Therefore, I find no reason to interfere with such concurrent finding of the courts below and accordingly, the conviction recorded by the courts below is confirmed. 5. As this court is not inclined to interfere with the order of conviction, the counsel for the revision petitioner submitted that a breathing time may be granted to the revision petitioner to pay the fine amount. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered favourably, and one month time can be granted to the revision petitioner to pay the fine amount. In the result, this Crl.R.P is disposed of confirming the conviction of the revision petitioner under section 138 of the NI Act. While confirming the sentence to pay fine, the fine amount and also the default sentence fixed by the courts below, the revision petitioner is granted one month time from today to deposit the fine amount, and it is made CRL.R.P 2916/10 -:5:- clear that the default sentence fixed by by the court below will be attracted only in case of default on the part of the revision petitioner in depositing the fine amount within one month time from today. Subject to the above observation and extension of time to pay the fine amount, this Crl.R.P. is disposed of. The learned counsel submitted that the revision petitioner had already deposited a sum of Rs.5000/- in the court below on the basis of the condition imposed by the appellate court while suspending the execution of the sentence. If that be so, it is made clear that if and the said amount is retained in the trial court, towards fine amount confirmed by this court, the revision petitioner need to deposit the balance amount after deducting the amount already deposited. V.K.MOHANAN, JUDGE kvm/- CRL.R.P 2916/10 -:6:- kvm/-