IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 16TH JUNE 2010 / 26TH JYAISTHA 1932 Crl.Rev.Pet.No. 1774 of 2010() ------------------------------ CRA.376/2008 of ADDL. SESSIONS COURT (ADHOC) III, PALAKKAD ST.1917/2006 of JUDICIAL MAGISTRATE OF FIRST CLASS – II, OTTAPALAM .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED :- ------------------------------------------------------------------- M.RAMAKRISHNAN, S/O.LATE RAMAN NAIR, "AMRITHA", P.O.CHUNANAGAD, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.P.JAYARAM RESPONDENT(S)/RESPONDENTS/COMPLAINANT AND STATE :- ----------------------------------------------------------------------------------------- 1. V.K.A.PRAKASH, S/O.KUMARA KRISHNAN, VENGASSERY KIZHAKKETHIL VEEDU, P.O.KOTHAKURUSSI, OTTAPALAM TALUK, PALAKKAD DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.PUSHPALATHA M.K. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt V.K.MOHANAN, J. ----------------------------- Crl.R.P.No.1774 of 2010 --------------------------------- Dated this the 16th day of June 2010 O R D E R This revision petition is preferred against the conviction and sentence imposed by the courts below against the revision petitioner under Sec.138 of the N.I.Act. 2. The case of the complainant is that, the accused borrowed a sum of Rs.50,000/- from the complainant and towards the discharge of said liability the accused issued a cheque for Rs.50,000/- which when presented for encashment dishonoured. 3. The trial court as well as the lower appellate court has concurrently found that the cheque in question was issued towards the discharge of the liability that due to the complainant. 4. Reiterating the contention taken by the accused during the trial, it is submitted that the complainant was Crl.R.P.No.1774 of 2010 : 2 : not having that capacity to part with such a huge amount of Rs.50,000/- and the complainant is failed to establish his source, the transaction and the parting of the consideration. All these points and contentions are on the basis of the facts and evidence involved in the case which already considered in the court below. 5. In the present case, it is relevant to note that the accused has not disputed the issuance of the cheque, the signature therein and the transaction also. The only dispute is that according to the revision petitioner, he had received only a sum of Rs.10,000/- and towards the said transaction, the cheque in question was issued. When the accused/revision petitioner admit the issuance of the cheque it is for him to establish such case by producing cogent materials and evidence. If the accused is totally a strange person we can understand that the burden of the complainant to establish the case showing with respect to the transaction and consideration etc. In this case, it is relevant to note that a formal demand notice was sent and Crl.R.P.No.1774 of 2010 : 3 : the same was received by the accused. He did not response to such demand, which was the first and best opportunity for the accused to deny the transaction. But in the present case, no reply was given and the plea now set up by the accused is taken only at the time of the trial and that too was not established to the satisfaction of the courts below. Therefore, I find no reason to interfere with the orders of the courts below. 6. The learned counsel for the revision petitioner submitted that some breathing time may be granted to make the payment. 7. Considering the facts and circumstances of the case, I am of the view that the said submission can be considered provided compensation amount is enhanced. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner under Sec.138 of the N.I.Act and confirming the sentence of imprisonment fixed by the lower appellate court and the fine amount is enhanced to the tune of Rs.65,000/- and the Crl.R.P.No.1774 of 2010 : 4 : revision petitioner is directed to undergo simple imprisonment for a period of three months in case of default of paying the fine amount. On realization of the fine amount, out of Rs.65,000/-, a sum of Rs.63,000/- (Rupees Sixty Three Thousand only) shall be paid to the complainant under Sec.357(1)(b) of Cr.P.C. Accordingly the revision petitioner is directed to appear before the trial court on 15th September, 2010 to receive the sentence of imprisonment and to deposit the fine amount. In case of any failure on the part of the revision petitioner in appearing before the trial court as directed above and making the deposit of fine amount, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence. V.K.MOHANAN, JUDGE. Jvt