IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 21ST JULY 2010 / 31ST VAISAKHA 1932 Crl.Rev.Pet.No. 2760 of 2009() ------------------------------ CRA.136/2008 of SESSIONS COURT, KASARAGOD CC.5/2008 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KASARAGOD DTD.26.4.2008 .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- SHINE JOSE, AGED 32 YEARS, S/O.P.T.JOSE, RESIDING IN PUTHETT HOUSE, THOVARIMALA POST, KUNTHANI, SULTHAN BATHERI, WAYANAD DISTRICT. BY ADV. SRI.C.K.SREEJITH RESPONDENT(S): COMPLAINANTS: ---------------------------- 1. A.M.ASHRAF, AGED 51 YEARS, S/O.K.M.AHAMMED MASTER, MASTERS HOUSE, KATTAKKAL, KALANAD P.O. AND VILLAGE, KASARAGOD TALUK & DISTRICT. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADVS.SRI.C.M.NAZAR, PUBLIC PROSECUTOR FOR R2. SRI.T.B.SHAJIMON FOR R1 SMT.GOVINDU P.RENUKADEVI FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ami/ V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2760 of 2009 ------------------------------- Dated this the 21st day of July, 2010. O R D E R Crl.M.A.No.5540/2010 This petition is filed u/s.482 of Cr.P.C. with a prayer to restore Crl.R.P.No.2760/09, which was already dismissed for non-prosecution. 2. Heard the counsels for the revision petitioner as well as the respondent. 3. The learned counsel for the revision petitioner submitted that, the amount due to the 1st respondent/complainant, ie., a sum of Rs.1 lakh, which the courts below ordered to pay as compensation to the 1st respondent/complainant, is ready and the dispute is settled out of court. The above submission is not controverted by the counsel appearing for the respondent. In the result, this petition is allowed and accordingly the revision petition is restored. Crl. R.P.No.2760 of 2009 2 Crl.M.A.No.5314/2010 The counsel for the revision petitioner submitted that, he is not pressing the above petition and the same is dismissed as not pressed. Crl. R.P.No.2760 of 2009 The revision petitioner is the accused in a prosecution for an offence punishable u/s.138 of Negotiable Instruments Act. 2. The case of the complainant is that the accused obtained a loan of Rs.1 lakh from the complainant, for the purpose connected with his contract work and towards the discharge of the said amount, the accused issued a cheque dated 15.3.2007 for an amount of Rs.1 lakh and when the said cheque presented for encashment, it was dishonoured as there was no sufficient fund in the account of the accused to honour the cheque. Consequently, the complainant caused issue a statutory notice demanding the revision petitioner to return the amount, covered by the dishonoured cheque but he failed to pay the amount and thus he approached the Judicial First Class Crl. R.P.No.2760 of 2009 3 Magistrate Court-II (Addl. Munsiff), Kasaragod, and cognizance was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.5/08. Finally, the trial court convicted the accused u/s.138 of Negotiable Instruments Act and sentenced him to undergo simple imprisonment for 3 months and also directed to pay compensation of Rs.1 lakh u/s.357(3) of Cr.P.C. to the complainant and the default sentence is fixed as one month simple imprisonment. 3. Though an appeal was filed challenging the above conviction and sentence, by judgment dated 10.7.2009 in Crl.A.136 of 2008, the Court of Sessions, Kasaragod, allowed the appeal only in part and the sentence of imprisonment reduced to 10 days, while the compensation and the default sentence ordered by the trial court were confirmed. It is the above order of conviction and sentence imposed against the revision petitioner, by the courts below, challenged in this revision petition. 4. I have carefully perused the judgments of the courts below and heard the learned counsels appearing for the revision Crl. R.P.No.2760 of 2009 4 petitioner as well as the respondent. The trial court as well as the lower appellate court, based upon the facts and circumstances involved in the case has concurrently found that the cheque in question was issued by the revision petitioner/accused towards the discharge of legal liability that due to the complainant. Though the matter was heard elaborately, nothing is brought on record to interfere with the concurrent findings of the courts below and accordingly the conviction recorded by the courts below against the revision petitioner is confirmed. 5. As this court is not inclined to interfere with the order of conviction, the learned counsel submitted that the sentence of imprisonment may be set aside and the revision petitioner may be permitted to pay the compensation amount to the respondent/complainant. 6. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered favourably. Thus while confirming the conviction of the revision petitioner u/s.138 of Negotiable Instruments Act as Crl. R.P.No.2760 of 2009 5 recorded by the courts below, in modification of the sentence of imprisonment as ordered by the courts below, the revision petitioner is sentenced to undergo simple imprisonment for one day ie., till rising of the court. Towards the payment of the compensation, the learned counsel for the revision petitioner on behalf of the revision petitioner/accused handed over a Demand Draft bearing No.720752 of SBI, Sultan Batheri Branch, dated 16.7.2010, for an amount of Rs.1 lakh, drawn in the name of the complainant/1st respondent and the learned counsel for the respondent received the same on behalf of the 1st respondent/complainant. Therefore the amount ordered by the courts below and approved by this court, is paid to the complainant and the same is recorded. In the result, this Crl. revision petition is disposed as ordered above and recording satisfaction of payment of compensation to the complainant u/s.357(3) of Cr.P.C. and sentencing the revision petitioner to undergo simple imprisonment for one day ie., till rising of the court, accordingly, Crl. R.P.No.2760 of 2009 6 the revision petitioner is directed to appear before the trial court on 28.7.2010 to receive the sentence of imprisonment. If there is any failure on the part of the revision petitioner to appear before the trial court as directed above, the said court is free to take coercive steps to ensure the presence of the revision petitioner/accused and to execute the above sentence. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/