IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 18TH JUNE 2010 / 28TH JYAISTHA 1932 Crl.Rev.Pet.No. 1849 of 2010() -------------------------------------------- CRA.660/2009 of 1ST ADDL. SESSIONS COURT, THRISSUR CC.973/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR ......................................................................... REVN. PETITIONER(S): PETITIONER/APPELLANT/ACCUSED ------------------------------------------------------------------------------------- SATHEESAN K.R., AGED 52 YEARS, S/O. RAGHAVAN, KOTTAKATH HOUSE, PERUMBADAPPU DESOM, EDATHIRUTHY VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT. BY ADVS. SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.K.A.NOUSHAD SRI.P.G.PRAMOD SRI.KANDAMPULLY RAHUL RESPONDENT(S)/RESPONDENTS/COMPLAINANT: ----------------------------------------------------------------------- 1. PRADEEP, AGED 50 YEARS, S/O. SIVARAMAN, MANIYATH HOUSE, PERUMBADAPPU DESOM, EDATHIRUTHY VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SRI.M.R.VENUGOPAL, PUBLIC PROSECUTOR FOR R2. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ami/ V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1849 of 2010 ------------------------------- Dated this the 18th day of June, 2010. O R D E R This revision petition is filed by the accused in a prosecution for the offence u/s.138 of Negotiable Instruments Act, challenging his conviction and sentence. 2. The case of the complainant is that the revision petitioner/accused borrowed a sum of Rs.1 lakh from the 1st respondent/complainant and towards the discharge of the said liability, he issued Ext.P1 cheque dated 05.9.2008 for a sum of Rs.1 lakh, which when presented for encashment dishonoured as there was no sufficient fund in the account maintained by the accused and he had also failed to pay the amount, even though he was demanded for the same by sending a statutory notice and therefore the accused has committed the offence u/s.138 of Negotiable Instruments Act. With the above allegation, the complainant had filed a formal complaint in the Judicial First Class Magistrate Court, Kodungallur, whereupon cognizance was taken and instituted C.C.No.973/08. During the trial of the case, Crl. R.P.No.1849 of 2010 2 the complainant himself mounted to the box and adduced oral evidence as PW1 and he had also produced Exts.P1 to P4 documents in support of his allegations. No evidence either oral or documentary were adduced from the side of the defence. On the basis of the available materials and evidence on record, the trial court found that the complainant has succeeded in establishing the case against the accused and accordingly found that the revision petitioner/accused is guilty of the offence u/s.138 of Negotiable Instruments Act. Thus, on convicting the revision petitioner u/s.138 of Negotiable Instruments Act, he is sentenced to undergo imprisonment till rising of the court and further ordered to pay a compensation of Rs.1 lakh to the 1st respondent/complainant u/s.357(3) of Cr.P.C. and in default of payment of compensation the revision petitioner is directed to undergo simple imprisonment for 2 months. Challenging the above conviction and sentence the revision petitioner has preferred an appeal and by judgment dated 26.3.2010 dated Crl.A.660/09, the Court of the 1st Addl. Sessions Judge, Crl. R.P.No.1849 of 2010 3 Thrissur, allowed the appeal in part, confirming the conviction, and there was no interference with the sentence and order for compensation. Accordingly, the revision petitioner is sentenced to undergo simple imprisonment till rising of the court and the compensation amount is fixed as Rs.1 lakh and the default sentence is fixed as 2 months simple imprisonment.It is the above order of conviction and sentence challenged in this revision petition. 3. I have heard the learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. The learned counsel for the revision petitioner, reiterating the stand taken by the revision petitioner during his trial, it is submitted that the complainant has miserably failed to establish the transaction and according to the learned counsel the only document produced by the complainant is Ext.P1 cheque and there is no other contemporary document to prove the transaction. All the contentions now raised by the counsel is merely based upon the facts and evidence on record, which Crl. R.P.No.1849 of 2010 4 were properly considered by the trial court as well as the lower appellate court. In this juncture, it is relevant to note that the revision petitioner is not seriously disputing the transaction as claimed by the complainant. Under the above circumstances, I find no reason to interfere with the concurrent findings of the trial court as well as the lower appellate court. 4. The counsel for the revision petitioner submitted that a breathing time may be granted to the revision petitioner to pay the compensation amount as ordered by the trial court and also submitted that the sentence of imprisonment imposed by the courts below is excessive and exorbitant when considered with the allegation raised against the revision petitioner. The learned counsel submitted that the sentence of imprisonment may be set aside and order may be confined to compensation only. 5. Though I am not fully satisfied with the above submission of the learned counsel, I am of the view that the sentence of imprisonment can be retained but the amount of compensation as ordered by the courts below, can be enhanced Crl. R.P.No.1849 of 2010 5 slightly and the revision petitioner can be granted some time to make the payment. In the result, this revision petition is disposed of confirming the conviction recorded by the trial court as well as the lower appellate court against the revision petitioner u/s.138 of Negotiable Instruments Act. Accordingly, the revision petitioner is sentenced to undergo imprisonment till the rising of the Court as ordered by the courts below. He is directed to pay compensation of Rs.1,10,000/- u/s.357(3) of Cr.P.C., to the complainant and in default of payment of compensation he is directed to undergo simple imprisonment for 3 months. The revision petitioner can pay the amount of compensation to the complainant directly, subject to the satisfaction of the trial court or remit the same in the trial court. Thus the revision petitioner is directed to appear before the trial court on 20.9.2010 to receive the sentence and to pay the compensation. If there is any failure in appearing before the court below as directed above and in making the payment, the trial court is free Crl. R.P.No.1849 of 2010 6 to take coercive steps to secure the presence of the revision petitioner and to execute the sentence awarded against him. If any warrant is pending against the revision petitioner, the execution of the same shall be deferred till 20.9.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/