IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 3RD SEPTEMBER 2010 / 12TH BHADRA 1932 Crl.Rev.Pet.No. 2268 of 2010() --------------------------------------- CRA.61/2008 of III ADDL.SESSIONS COURT, KOLLAM ST.12/2006 of JUDL.MAGISTRATE OF FIRST CLASS-II, KARUNAGAPPALLY .................... REVN. PETITIONER(S)/ACCUSED :- ----------------------------------------------- VASUMATHY, W/O. BALAKRISHNAN, AGED 52, K.V.BHAVANAM, PRAYAR SOUTH MURI, CLAPPANA VILLAGE, KARUNAGAPPALLY. BY ADVS. MR.K.R.SUNIL RESPONDENT(S)/COMPLAINANT :- ------------------------------------------------ 1. RAJENDRAN, S/O. RAGHAVAN, AGED 43, PLAVILAYIL VEEDU, PAVUMPA SOUTH MURI, PAVUMPA VILLAGE, KARUNAGAPPALLY. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SMT.SUMANGALA P.N. ADV. SRI. K.SIJU KAMALASANAN FOR R1 SRI.A.MUHAMMED RAFFI FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ----------------------------- Crl.R.P.No.2268 of 2010 --------------------------------- Dated this the 3rd day of September 2010 O R D E R The accused in a prosecution for an offence u/s.138 of the Negotiable Instruments Act is the revision petitioner, as she is aggrieved by the order of conviction and sentence imposed by the courts below. 2. The case of the complainant is that the accused/revision petitioner borrowed a sum of Rs.1,35,000/- from the complainant and towards the discharge of the debt due to the complainant, she issued Ext.P1 cheque dated 7.10.2002 for an amount of Rs.1,35,000/-, which when presented for encashment dishonoured, as there was no sufficient fund in the account maintained by the accused and the cheque amount was not repaid inspite of a formal Crl.R.P.No.2268 of 2010 -: 2 :- demand notice and thus the revision petitioner has committed the offence punishable u/s.138 of the Negotiable Instruments Act. With the said allegation, the complainant approached the Judicial First Class Magistrate-II, Karunagappally, by filing a formal complaint, upon which cognizance was taken u/s.138 of the Negotiable Instruments Act and instituted S.T.No.12/2006. During the trial of the case, the complainant himself examined as PW1 and produced Exts.P1 to P4 documents. No evidence either oral or documentary from the side of the defence. On the basis of the available materials and evidence on record, the trial court has found that the cheque in question was issued by the revision petitioner/accused for the purpose of discharging her debt due to the complainant. Thus accordingly the court found that, the complainant has established the case against the accused/ revision petitioner and consequently held that the accused is guilty and thus convicted her u/s.138 of the Negotiable Instruments Act. Crl.R.P.No.2268 of 2010 -: 3 :- On such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment for one year and to pay a compensation of Rs.1,35,000/- to the complainant u/s.357(3) of Cr.P.C. and the default sentence is fixed as three months simple imprisonment. 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 10.9.2009 in Crl.A.No.61/2008, the Court of III Addl. Sessions Judge, Kollam dismissed the appeal, confirming the conviction of the revision petitioner, the sentence of imprisonment is modified reducing the term of imprisonment to till the rising of the court and with a direction to pay the cheque amount of Rs.1,35,000/- as compensation to the complainant u/s.357 (3) of Cr.P.C. The default sentence is also confirmed. It is the above conviction and sentence are challenged in this revision petition. 4. I have heard the learned counsel appearing for the revision petitioner and also perused the judgments of the Crl.R.P.No.2268 of 2010 -: 4 :- courts below. 5. As this court is not inclined to interfere with the order of conviction recorded by the courts below, the learned counsel for the revision petitioner submitted that, a breathing time may be granted to the revision petitioner to pay the compensation 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 positively. As per the records, a sum of Rs.1,35,000/- is due to the complainant from the date of the cheque ie; 7.10.2002. Thus, a sum of Rs.1,35,000/- is with the revision petitioner for the last 8 years. It is also relevant to note that though the trial court has imposed a sentence of imprisonment for a period of one year, the appellate court has reduced the same to one day simple imprisonment. It is also relevant to note that though the appellate court judgment is dated 10.9.2009, no amount is paid, though one year is over after the appellate court Crl.R.P.No.2268 of 2010 -: 5 :- judgment. Therefore, considering the above facts and circumstances, I am of the view that while granting time to the revision petitioner to pay the amount, the amount can be enhanced slightly. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner u/s.138 of the Negotiable Instruments Act as recorded by the courts below. Accordingly, while maintaining the sentence of imprisonment as revised and refixed by the appellate court, the revision petitioner is directed to pay a sum of Rs.1,50,000/- to the complainant as compensation u/s.357(3) of Cr.P.C. within three months from today and in case any default in paying the above amount within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for a period of three months. Accordingly, the revision petitioner is directed to appear before the trial court on 3rd December, 2010 to receive the sentence of imprisonment and to pay the compensation amount, as fixed Crl.R.P.No.2268 of 2010 -: 6 :- by this court. In case any failure on the part of the revision petitioner in appearing before the court below as directed above and in making the payment of compensation amount, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence awarded against the revision petitioner. Criminal Revision Petition is disposed of accordingly. V.K.MOHANAN, JUDGE. Jvt