IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 15TH SEPTEMBER 2010 / 24TH BHADRA 1932 Crl.Rev.Pet.No. 2631 of 2010() ------------------------------ CRA.700/2007 of ADDL.SESSIONS COURT (ADHOC)-IV, TRIVANDRUM ST.327/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, NEDUMANGAD .................... REVISION PETITIONER(S): ACCUSED/APPELLANT: --------------------------------------------------------------------------- B.MAHESH, S/O.BHANU NADAR, WHOLESALE AND RETAIL VEGETABLE MERCHANT, CHALAI, THIRUVANANTHAPURAM, RESIDING AT MADHU BHAVAN, VILAVOORKAL, MALAYINKEEZHU P.O. BY ADV. SRI.G.SUDHEER RESPONDENT(S): COMPLAINANT & STATE: ----------------------------------------------------------------- 1. S.SHAMNAD, BEENA MANZIL, AMBANAD, 10TH STORE, MANCHA P.O., NEDUMANGADU- 695 001. 2. STATE OF KERALA-REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. V. TEKCHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------------------ Crl.R.P. No. 2631 OF 2010 ---------------------------------------- Dated the 15th Day of 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-the first respondent herein, is that the accused borrowed an amount of Rs.1,70,000/- from the complainant and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 29.9.2003 for Rs.1,70,000/- 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 court of Judicial First Class Magistrate-II, Nedumangad by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted S.T.No.327/2004. During the course of trial, the complainant himself mounted to the box and CRL.R.P. 2631/10 :-2-: adduced oral evidence as PW1. He has also produced Exts.P1 to P6 as documentary evidence. From the side of the defence, DW1 and DW2 were examined and produced Exts.D1 to D3 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 also directed to pay an amount of Rs.1,72,000/- to the complainant as compensation under section 357(3) of Cr.P.C. The default sentence fixed is simple imprisonment for one month. Aggrieved by the above order of conviction and sentence, though an appeal was filed at the instance of the revision petitioner-accused, by judgment dated 30.6.2010 in Crl.A.No.700/2007, the court of Addl. CRL.R.P. 2631/10 :-3-: Sessions Judge, Fast Track (Adhoc)No.IV, Thiruvananthapuram, allowed the appeal only in part and thus while confirming the conviction of the revision petitioner under section 138 of the NI Act, the sentence of imprisonment is modified and reduced to imprisonment till rising of the court and the direction to pay compensation and the default sentence etc as ordered by the trial court are confirmed in appeal. It is the above judgments of the trial court as well as the lower appellate court challenged in this Crl.R.P. 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 by interfering with the concurrent findings of the courts CRL.R.P. 2631/10 :-4-: 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 courts below and accordingly, the conviction recorded by the courts below is confirmed. 4. As this court is not inclined to interfere with the order of conviction, the learned counsel submitted that a breathing time may be granted to the revision petitioner to pay the compensation amount. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered favourably, but while granting time, the compensation amount can be enhanced slightly since the cheque in question is dated 29.9.2003. Thus the said amount is due to the complainant for the last 7 years. 5. 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 . Thus while maintaining the sentence of imprisonment modified and fixed by the appellate court, the revision petitioner is directed to pay a sum of CRL.R.P. 2631/10 :-5-: Rs.1,85,000/- as compensation to the complainant under section 357(3) Cr.P.C within three months from today and in default in paying the compensation within the time stipulated, the revision petitioner is directed to undergo simple imprisonment for three months. Accordingly, the revision petitioner is directed to appear before the trial court on 15th December, 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 compensation amount. Coercive steps in any pending against the revision petitioner shall be deferred till 15.12.2010. V.K.MOHANAN, JUDGE kvm/-