IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 17TH AUGUST 2010 / 26TH SRAVANA 1932 Crl.Rev.Pet.No. 2483 of 2010() ------------------------------ CRA.517/2008 of ADDL. SESSIONS COURT-II, TRIVANDRUM CC.87/2007 of ADDL. CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... REVN. PETITIONER: APPELLANT/ACCUSED -------------------------------------- C.N.SADANANDAN, S/O.NARAYANAN, ANIL COTTAGE, THYCAUD.P.O., THIRUVANANTHAPURAM. BY ADV. SRI.M.RAMASWAMY PILLAI SRI.P.M.JOSEPH RESPONDENTS: RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. G.RAMACHANDRA KURUP, ASWATHI, RAMANPARAMBU, THAKKALA.P.O., K.K.DIST., TAMILNADU. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY P.P. SRI VENUGOPAL M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.R.P. No. 2483 of 2010 ---------------------------------------- Dated the 17th Day of August, 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 accused borrowed an amount of Rs.1,50,000/- from the complainant and towards the discharge of the liability, the accused issued Ext.P1 cheque dated 3.8..2006 for an amount of Rs.1,50,000/- and when the said cheque presented for encashment, dishonoured with the endorsement “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 Addl. Chief Judicial Magistrate, Thiruvananthapuram by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act CRL.R.P.No.2483/10 -:2:- and instituted C.C. No.87/2007. During the course of trial, from the side of the complainant, complainant himself was examined as PW1 and produced Exts.P1 to P5 as documentary evidence. From the side of the defence, no evidence, either oral or documentary was was produced After evaluation of the evidence and the materials on record, the trial court has found that Ext.P1 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 undergo simple imprisonment till the rising of the court and to pay a fine of Rs.1,50,000/- .It is also ordered that the entire amount of fine, if realised, will be given to the complainant as compensation under section 357(1) Cr.P.C. The default sentence is fixed as simple imprisonment for three months. Aggrieved by the above CRL.R.P.No.2483/10 -:3:- order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 25.6.2010 in Crl.A.No.517/2008, the court of Addl. Sessions Judge-II, Thiruvananthapuram dismissed the appeal confirming the conviction and sentence. 3. 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 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 CRL.R.P.No.2483/10 -:4:- courts below and accordingly, the conviction recorded by the courts below is confirmed. 4. As this Court is not inclined to interfere with the conviction, the learned counsel for the revision petitioner submitted that the revision petitioner may be permitted to pay the cheque amount by way of compensation to the complainant directly and the may be set aside. 5. 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 some time can be given to the revision petitioner to pay the amount. In the result, this Crl.R.P is disposed of confirming the conviction recorded by the courts below for the offence under section 138 of the N.I.Act . Accordingly, while confirming the sentence of imprisonment ordered by the courts below, the order to pay fine is set aside and the revision petitioner is directed to pay a sum of Rs.1,50,000/- to the complainant under section 357(3) Cr.P.C within three months from today, and in case of any default in paying the amount within the stipulated time, the revision petitioner CRL.R.P.No.2483/10 -:5:- is directed to undergo simple imprisonment for a period of three months. Accordingly, revision petitioner is directed to appear before the trial court on 15.11.2010 to receive the sentence and to pay the compensation amount as directed above. The revision petitioner is free to pay the compensation amount either directly to the complainant or by remitting the same before the court below whichever subject to the satisfaction of the learned Magistrate. If there is any default on the part of the revision petitioner in appearing before the trial court as directed above, the trial court is free to take coercive steps against the revision petitioner to secure his presence and to execute the sentence. This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- CRL.R.P.No.2483/10 -:6:-