IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 9TH SEPTEMBER 2010 / 18TH BHADRA 1932 Crl.Rev.Pet.No. 2686 of 2010() -------------------------- CRA.109/2009 OF ADDL. SESSIONS COURT, (ADHOC), PALAKKAD ST.2750/2007 OF JUDL. FIRST CLASS MAGISTRATE OF COURT, CHITTUR ............................................... REVISION PETITIONER / APPELLANT / ACCUSED : --------------------------------------------------------------------- ABU, S/O.MUHHAMMEDALI,VALMUTTY, CHITTUR VILLAGE, PALAKKAD DISTRICT. BY ADV. SRI. JACOB SEBASTIAN RESPONDENT / RESPONDENTS / COMPLAINANT & STATE : ----------------------------------------------------------------------------------- 1. SIVADASSAN, S/O.RAMANKUTTY, VALMUTTY, CHITTUR VILLAGE, PALAKKAD DISTRICT- 678 014. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT. SUMANGALA P.N. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn V.K.MOHANAN, J. ----------------------------------------- Crl.R.P. No. 2686 OF 2010 ---------------------------------------- Dated the 9th September, 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.30,000/- from the complainant and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 14.11.2007 which when presented for encashment, dishonoured as there was no sufficient fund in the account maintained by the accused 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 Judicial First Class Magistrate, Chittur by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted S.T.No.2750/2007. During the course of trial, the complainant himself mounted to the box and adduced oral evidence as PW1. He has also produced CRL.R.P.2686/10 :-2-: Exts.P1 to P5 as documentary evidence. From the side of the defence, no documentary evidence, either oral or documentary, 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 for a period of one month and to pay compensation of Rs.35,000/- under section 357(3) Cr.P.C. in default, she is directed to undergo simple imprisonment for a further period of 15 days. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 16.6.2010 in Crl.A.No. 109/2009, the court of Addl. Sessions Judge, (Adhoc-I), Palakkad, confirmed the conviction of the revision petitioner and modified CRL.R.P.2686/10 :-3-: the sentence by reducing the imprisonment to simple imprisonment till rising of the court and no interference is made with respect to the compensation amount. It is the above judgments of the trial court as well as the lower appellate court challenged in this Crl.R.P. 3. The learned counsel for the revision petitioner submitted that a breathing time may be granted to the revision petitioner to receive the sentence and to pay the compensation amount. 4. 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 two months time can be granted to pay the compensation amount. But the default sentence can be enhanced to one month simple imprisonment. In the result, this Crl.R.P is disposed of confirming the conviction of the revision petitioner under section 138 of the N.I.Act and recorded by the court below. Thus while maintaining the sentence of imprisonment as modified and refixed by the lower appellate court, the direction to pay compensation is confirmed but two months time is granted to pay CRL.R.P.2686/10 :-4-: the compensation. In case of failure in paying the compensation amount within two months from today, the revision petitioner is directed to undergo simple imprisonment for a period of one month. Accordingly, the revision petitioner is directed to appear before the trial court on 8th November, 2010 to receive the sentence and to pay the compensation amount. 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 and for realisation of the amount. The coercive steps if any pending against the revision petitioner shall be deferred till 8.11.2010 This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- CRL.R.P.2686/10 :-5-: