IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 12TH OCTOBER 2010 / 20TH ASWINA 1932 Crl.Rev.Pet.No. 2993 of 2010() ----------------------------------------- CRA.311/2009 of I ADDL. SESSIONS COURT, PALAKKAD ST.1001/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT, PATTAMBI .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------------------ K.K.GOPALAKRISHNAN S/O.LATE AMMATHIL KUNJUNNI MENON, SREEDEVI NIVAS, KAKKATTIRI PO, VIA THRITHALA PALAKKAD DISTRICT. BY ADV. SRI.JACOB SEBASTIAN RESPONDENT(S): RESPONDENT/COMPLAINANT & STATE ---------------------------------------------------------------------------------- 1. PURUTHOSTHAMAN,S/O.LATE DEVAKI APPISSI, VATOTTU, KANGATHU, PATTITHARA AMSOM DESOM, OTTAPALAM, PALAKKAD DISTRICT-679 101. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI.V.TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts V.K.MOHANAN, J. ---------------------------------------- Crl.R.P. No.2993 of 2010 ---------------------------------------- Dated the 12th Day of October, 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 towards the discharge of a liability due to the complainant , the accused issued Ext.P1 cheque dated 1.6.2007 for an amount of Rs.1,00,000/-which when presented for encashment was 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, Pattambi, by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted S.T.No.1001/2007. During the course of trial, the complainant himself mounted to the box and adduced oral evidence as PW1. He has also produced Exts.P1 to P5 as CRRP 2993/10 :-2-: documentary evidence. From the side of the defence, no 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 three months and to pay compensation of Rs.1,00,000/- to the complainant under section 357(3) Cr.P.C. The default sentence is fixed as simple imprisonment for a period of one month. 3. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 30.7.2010 in Crl.A.No.311/2009, the court of Addl. Sessions Judge, Adhoc-III, Palakkad, allowed the appeal only in part. Thus, while confirming the conviction, the CRRP 2993/10 :-3-: sentence of imprisonment ordered by the trial court is set aside and the revision petitioner is sentenced to pay fine of Rs.1,10,000/- and the default sentence is fixed as simple imprisonment for two months. It is also ordered that if the fine amount is realised, the same shall be given to the complainant as compensation under section 357(1)(b) of Cr.P.C. It is the above judgments of the trial court as well as the 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 CRRP 2993/10 :-4-: 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, which submission, according to me deserves consideration AND while granting some time, the fine amount can be enhanced slightly considering the fact that the cheque in question is pertained to the year 2007. In the result, this Crl.R.P is disposed of confirming the conviction of the revision petitioner recorded by the courts below for the offence under section 138 of the N.I.Act. accordingly, while confirming the sentence of fine imposed by the appellate court, the amount is enhanced to the tune of Rs.1,20,000/- which shall be deposited by the revision petitioner within three months from today and in default of payment as directed above, the revision petitioner is directed to undergo simple imprisonment for a period of three months. The revision CRRP 2993/10 :-5-: petitioner is directed to deposit a sum of Rs.1,20,000/- (Rs.one lakh and twenty thousand only) before the trial court, being fine amount, on or before 12th January, 2011. On realisation of the fine amount, a sum of Rs.1,15,000/- shall be paid to the complainant as compensation under section 357(1)(b) of Cr.P.C. and the remaining amount shall be deposited in the State Ex chequer. If there is any default on the part of the revision petitioner in depositing the fine amount 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. Coercive steps, if any, pending shall be deferred till 12.1.2011. This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/-