IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 29TH JANUARY 2010 / 9TH MAGHA 1931 Crl.Rev.Pet.No. 364 of 2010 ----------------------------------- (CRA.301/2008 of ADDL.DT. & SESSIONS COURT (ADHOC)-II, KOTTAYAM ST.1713/2005 of JUDL.MAGISTRATE OF FIRST CLASS - I, ETTUMANUR) .................... REVN. PETITIONER(S): APPELLANTS/ACCUSED: ------------------------------------------------------------------- N.GOPAKUMAR, S/O.NARAYANAN, NEYTHURUTHIYIL HOUSE, KIZHAKKUMBHAGOM KARA, ETTUMANNOOR. BY ADV. SRI.P.C.HARIDAS RESPONDENT(S): COMPLAINANT: ------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR PLEADER, HIGH COURT OF KERALA, ERNAKULAM. 2. SHAJI PAILY, AATTUPURATHU HOUSE, MANJOOR P.O., KOTHANALLOOR VILLAGE. R1 BY PUBLIC PROSECUTOR SRI.P.K.JAYAKRISHNAN. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.R.P.No. 364 of 2010 --------------------------------------------- Dated this the 29th day of January, 2010 O R D E R Having failed in two consecutive proceedings, the revision petitioner/accused, in a prosecution for offence under Section 138 of the Negotiable Instruments Act, has approached this Court by preferring the above criminal revision petition. 2. The second respondent is the complainant. According to him, an amount of Rs.85,000/- was due from the accused and towards the discharge of the said liability, the accused issued Ext.P1 cheque. During the trial, from the side of the complainant, PW1 was examined. Besides the above oral evidence, he had also produced Exts.P1 to P5 documentary evidence. Though no documentary evidence was adduced from the side of the defence witness, the revision petitioner/accused himself mounted to the box and deposed as DW1. The trial court, on appreciation of evidence and materials on Crl.R.PNO.364 of 2010 :-2-: record, found that the accused is guilty of the offence levelled against him and accordingly, he is convicted and sentenced to undergo simple imprisonment for two months and further directed to pay compensation of Rs.85,000/- to the complainant under Section 357(3) of Cr.P.C. It is also ordered that in default of payment, the accused shall undergo simple imprisonment for two months. 3. Aggrieved by the above finding, order of conviction and sentence, the revision petitioner/appellant preferred Crl.A.No.301 of 2008 before the Sessions Court, Kottayam. While confirming the conviction, the lower appellate court interfered with the sentence and reduced the same till the rising of the court and set aside the order of the Magistrate to pay compensation to the complainant. The lower appellate court, while reducing the period of imprisonment, sentenced him to pay a fine of Rs.85,000/- and further directed that on realising the fine amount, the same shall be paid to the complainant under Section 357(1)(b) of Cr.P.C. Crl.R.PNO.364 of 2010 :-3-: 4. Heard learned counsel for the revision petitioner. 5. The trial court as well as the lower appellate court, on appreciation of the evidence and materials on record, found that the revision petitioner has committed the offence alleged against him. The complainant himself deposed before the court below as PW1 and adduced evidence in terms of the allegations in the complaint. It is to be noted that the accused has not disputed the signature bearing on Ext.P1 cheque dated 2.7.2005. Thus, based upon the available materials, the courts below have concurrently found that the complainant has established the case against the accused and he is entitled to get the presumption under Section 139 of the N.I.Act and the revision petitioner has miserably failed to rebut such presumption. It was under the above circumstances, the courts below found guilty of the revision petitioner. 6. The learned counsel for the revision petitioner submitted that the complainant miserably failed to produce Crl.R.PNO.364 of 2010 :-4-: any evidence except Ext.P1 cheque. Both the courts below, after having considered the evidence of PW1, found that the complainant has established his case. In this juncture, it is relevant to note that the revision petitioner/accused miserably failed to meet the statutory notice in time by giving a proper reply. When the accused was examined under Section 313, for the first time he had set up a case to the effect that the cheque in question was stolen by the complainant and therefore, there was no transaction and he denied the execution of Ext.P1 cheque. At the time of the defence evidence, the accused himself mounted to the box and deposed as DW1 during which he took an inconsistent version from what he had stated, at the time of his examination under Section 313 of Cr.P.C. As a witness, he deposed that Ext.P1 cheque was entrusted with the complainant who was his friend to look after the affairs of the ward, which represented by the accused. Considering the fact that the revision petitioner/accused himself failed to Crl.R.PNO.364 of 2010 :-5-: avail his first opportunity to set up his defence by issuing a proper reply to the statutory notice and considering the conflicting and contradictory stand regarding Ext.P1 cheque, I am of the view that the accused has miserably failed to rebut the presumption which was available to the complainant, especially in the light of the available evidence. Therefore, I find no reason to interfere with the findings of the courts below and also the order of conviction. 7. Learned counsel for the petitioner submitted that the appellate court was wrong in imposing the sentence of fine of more than Rs.10,000/- since Section 29 of the Cr.P.C. does not permit the court to impose such a huge amount as fine. It is also pointed out that on the basis of the decision of the Apex Court reported in Ahammedkutty v. E.P.Abdullakoya [2008(1) KLT 851 (SC)], the lower appellate court has observed that no default sentence can be imposed for the non-payment of compensation awarded. It is relevant to note that the learned Magistrate, while Crl.R.PNO.364 of 2010 :-6-: passing the judgment, sentenced the accused to undergo simple imprisonment for two months and no order of fine was imposed against the revision petitioner. On the other hand, the learned Magistrate directed the revision petitioner to pay a sum of Rs.85,000/- to the complainant as compensation under Section 357(3) of the Cr.P.C. Of course, default sentence was fixed as two months. Ext.P1 cheque is dated 2.7.2005. Due to the dishonour of the cheque, the complainant has not received the amount and to redress his grievance, he had approached the trial court. Even though there was an order in favour of him, so far the same is not materialised because of the proceedings pending by way of appeal. Under the above circumstances, I am of the view that for the ends of justice, the order of learned Magistrate with respect to the compensation can be restored and also confirm the sentence of imprisonment ordered by the lower appellate court. Crl.R.PNO.364 of 2010 :-7-: In the result, this Criminal Revision Petition is disposed of confirming the conviction of the revision petitioner under Section 138 of the N.I.Act and also confirming the sentence of imprisonment till rising of the court as ordered by the lower appellate court. The revision petitioner is directed to pay a sum of Rs.85,000/- to the complainant within two months from today. Accordingly, the revision petitioner is directed to appear before the trial court on 3.4.2010 to receive the sentence of imprisonment and to pay the compensation as directed. If there is any failure on the part of the revision petitioner in appearing before the court below and making the payment as directed above, the trial court is free to procure the presence of the revision petitioner and to take steps to execute the sentence and also for the realisation of the compensation amount. sd/- V.K.Mohanan, MBS/ Judge -true copy- P.A.TO JUDGE Crl.R.PNO.364 of 2010 :-8-: V.K.MOHANAN, J. -------------------------------------------- Crl.R.P.NO. OF 200 Crl.R.PNO.364 of 2010 :-9-: ------------------------------------ -------- O R D E R DATED: -10-2009 Crl.R.PNO.364 of 2010 :-10-: