IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 23RD SEPTEMBER 2010 / 1ST ASWINA 1932 Crl.Rev.Pet.No. 2789 of 2010() ------------------------------ CRA.936/2008 of ADDL.SESSIONS COURT, (ADHOC-1), ERNAKULAM CC.307/2006 of ADDL.CHIEF JUDICIAL MAGISTRATE'S COURT (E & O),ERNAKULAM .................... REVN. PETITIONER: APPELLANT/ACCUSED -------------------------------------- SAMUEL VARGHESE, AGED 42 YEARS, S/O.M.VARGHESE, C/O.SHEBA MOTOR DRIVING SCHOOL, OPP.PUSHPAGIRI HOSPITAL, THIRUVALLA. BY ADV. SRI.SANIL KUMAR RESPONDENTS: COMPLAINANT AND STATE ------------------------------------ 1. BEN SAMUEL, AGED 50 YEARS, S/O.K.O.SAMUEL, KARACKATTU HOUSE, GARDEN LAND COCHIN PALACE P.O., TRIPPUNITHURA. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. V. TEK CHAND. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------------------ Crl.R.P. No. 2789 of 2010 ---------------------------------------- Dated the 23rd 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 is that the accused borrowed an amount of Rs.1,50,000/- from the complainant and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 9.10.2004, 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 initially approached the court of Addl.Chief Judicial Magistrate, Ernakulam wherein it was numbered as C.C.No.251/2005 and later it was made over to the trial court,i.e., the court of the Addl. Chief Judicial Magistrate (Economic Offences), Ernakulam and the case was renumbered as C.C.No.307/2006. During the course of trial, PW.1, the complainant, and PWs 2 and 3 were examined and produced Exts.P1 to P6 as documentary evidence. From the side of the defence, DW1, the accused, and DW2 were examined and marked Ext.D1. After evaluation CRL.R.P. 2789/10 :-2-: of the evidence and the materials on record, the trial court has found that the 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 one month and to pay a fine of Rs.1,50,000/-. The default sentence is fixed as simple imprisonment for a period of two months. It is also ordered that on realisation of the fine amount, the same shall be given to the complainant under section 357(1) of Cr.P.C. 3. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 22.6.2010 in Crl.A.No.936/2008, the court of Addl. Sessions Judge, (Adhoc-I), Ernakulam, though dismissed the appeal, modified the sentence. Accordingly, the sentence of imprisonment is reduced to imprisonment till rising of the court and the fine amount is enhanced to Rs.1,55,000/- instead of Rs.1,50,000/- ordered by the trial court. It is the above judgments of the trial court as well as the CRL.R.P. 2789/10 :-3-: lower appellate court challenged in this Crl.R.P. 4. 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 courts below and accordingly, the conviction recorded by the courts below is confirmed. 5. As this court is not inclined to interfere with the conviction, the counsel submitted that a breathing time may be granted to the revision petitioner to pay the fine amount. 6. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered CRL.R.P. 2789/10 :-4-: favourably, but subject to slight enhancement with respect to the fine amount considering the fact that the cheque is dated 9.10.2004. 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 as recorded by the courts below. Accordingly, while confirming the sentence of imprisonment as modified and refixed by the appellate court, the revision petitioner is sentenced to deposit a fine of Rs.1,65,000/- (Rs.One lakh sixty five thousand only)f within three months from today, and in case of any default in depositing the fine amount within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for a period of two months. Accordingly the revision petitioner is directed to appear before the trial court on 23nd December, 2010 to receive the sentence and to deposit the fine 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 fine amount. On realisation of the fine amount, Rs.1,62,500/- (Rs.one lakh sixty two thousand and five hundred only) shall be paid to the complainant as compensation under section 357 (1)(b) Cr.P.C, and the remaining amount shall be deposited into the CRL.R.P. 2789/10 :-5-: State Exchequer. Coercive steps, if any, pending against the revision petitioner shall be deferred till 23.12.2010. This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/-