IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 28TH SEPTEMBER 2010 / 6TH ASWINA 1932 Crl.Rev.Pet.No. 990 of 2004(C) ------------------------------ CRA.854/2003 of V ADDL.SESSIONS COURT, ERNAKULAM CC.973/1999 of ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM .................... REVN. PETITIONER(S): ACCUSED. ----------------------------- E.S.R.NAMPOOTHIRI, MATTATHIL EDAMANA ILLAM, VAKATHANAM P.O. KOTTAYAM. BY ADV. SRI.M.RAMESH CHANDER RESPONDENT(S): COMPLAINANT AND STATE. ------------------------------------- 1. JOHNY M.VARICATT, 44/1200, ASOKA ROAD, KALOOR, ERNAKULAM. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.N.SUBRAMANIAM FOR R1 SRI.M.S.NARAYANAN FOR R1 SRI.P.T.GIRIJAN FOR R1 SRI.PRAMODH.R. FOR R1 SMT.USHA NARAYANAN FOR R1 PUBLIC PROSECUTOR SRI.SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.A.No.12025/2004 in Crl.R.P.No.990/2004 Dismissed. 28-09-2010 Sd/-, P.Q.BARKATH ALI, JUDGE /True Copy/ P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.990 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of September, 2010 ORDER Revision petitioner is the accused in C.C.No.973/1999 of Additional Chief Judicial Magistrate ( E.O.) Court, Ernakulam and appellant in Crl.Appeal No.854/2003 of IV Addl. Sessions Court, Ernakulam. He was convicted under Section 138 of Negotiable Instruments Act and was sentenced to undergo simple imprisonment for three months and to pay a fine of Rs.2,25,000/-, in default to undergo simple imprisonment for two months by the Magistrate by judgment dated August 21, 2003. His conviction was confirmed by the lower appellate court. But the sentence was restricted to payment of fine of Rs. 2,25,000/-, in default to undergo simple imprisonment for two months. Out of the fine amount, if realised, Rs.2,23,000/- was ordered to be paid to the complainant as compensation by the Magistrate as well as by the lower appellate court. The accused has now come up in revision challenging his conviction and sentence. 2. The case of the first respondent/complainant as testified by Crl.R.P.No.990/2004 2 him as PW1 before the trial court and as detailed in the complaint was that accused has borrowed Rs. 2,15,000/- from him and to discharge that liability, he issued the cheque Ext.P1 dated August 16, 1997 drawn on the Nagampadom branch of Union Bank of India which when presented for collection was returned dishounoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of notice Ext.P4 dated September 5, 1997 the accused did not repay the amount which is an offence punishable under Section 138 of Negotiable Instruments Act. 3. The complaint was initially filed before the Judicial First Class Magistrate II, Ernakulam. On receipt of the complaint sworn statement of the power of attorney holder of the complainant was recorded and thereafter by the order of the Chief Judicial Magistrate,Ernakulam, it was made over to the trial court. The accused on appearance before the trial court pleaded not guilty to a charge under Section 138 of Negotiable Instruments Act. Complainant was examined as PW 1 and Exts.P1 to P8 were marked on his side. When questioned under Section 313 of Cr.P.C., the accused denied the entire Crl.R.P.No.990/2004 3 transaction. DW 1 and DW2 were examined and Exts.D1 to D4 were marked on the side of the accused. 4. The learned Magistrate on an appreciation of evidence found the revision petitioner guilty of the offence punishable under Section 138 of Negotiable Instruments Act , convicted him thereunder and sentenced him as aforesaid. On appeal by the accused, the lower appellate court confirmed his conviction, but modified the sentence as stated above. The accused has now come up in revision challenging his conviction and sentence. 5. Heard the counsel for the revision petitioner and the counsel for the revision first respondent. 6. Though several contentions were raised by the revision petitioner, counsel for the revision petitioner submitted that he is prepared to pay the amount due to the complainant and requested six months time to pay the amount. Therefore, confirming the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act and the sentence imposed by the trial court which is modified by the lower appellate Crl.R.P.No.990/2004 4 court, this revision petition is dismissed. Four months time is granted to the revision petitioner to pay the fine imposed by the lower appellate court. The amount already deposited by the revision petitioner before the trial court shall be given credit to. The complainant will be entitled to withdraw that amount. Out of the fine amount, if realised, Rs.2,23,000/- shall be given to the complainant as compensation. The bail bonds of accused are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.990/2004 5