IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 26TH OCTOBER 2010 / 4TH KARTHIKA 1932 Crl.Rev.Pet.No. 3088 of 2010() ------------------------------------------- CRA.96/2009 of ADDL. SESSIONS COURT (ADHOC), KOZHIKODE ST.311/2008 of SPECIAL JUDICIAL FIRST CLASS MAGISTRATE (MARAD CASES0, KOZHIKODE. ........................................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------------------------- S.SUBRAMANYAN,S/O.KUNHADI,AGED 39 YEARS, GARDENER,BOTTONY DEPARTMENT, CALICUT UNIVERSITY, TENHIPALAM,MALAPPURAM DISTRICT. BY ADV. SRI.K.G.ANIL BABU RESPONDENT(S): RESPONDENTS & COMPLAINANT AND STATE -------------------------------------------------- 1. DHANYA JAYARAM,D/O.LATE JAYARAJAN, AGED 24 YEARS,'SHRUTHI',MALAPARAMBU,NEDUNGOTTOOR AMSOM,DESOM, KOZHIKODE TALUK. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.JACOB ABRAHAM FOR R1 SMT.KOCHUMOL KODUVATH FOR R1 PUBLIC PROSECUTOR SMT. SUMANGALA. P.N THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sou. V.K. MOHANAN, J ---------------------- Crl.R.P.No.3088 OF 2010 ----------------------------------- Dated this the 26th day of October, 2010 O R D E R The accused in a prosecution for an offence u/s.138 of Negotiable Instruments Act is the revision petitioner, as he is aggrieved by the order of conviction and sentence imposed by the court below. 2. The case of the complainant is that the accused/revision petitioner, towards the discharge of a debt due to the complainant, issued a cheque dated 18.10.2007 for a sum of Rs.40,000/-, which when presented for encashment, dishonoured, due to the reason that there was no sufficient fund in the account maintained by the accused and the cheque amount was not repaid in spite of a formal demand notice and thus the revision petitioner has committed the offence punishable under section 138 of Negotiable Instruments Act. With the said allegation, the complainant approached Special Judicial First Class Magistrate (Marad Cases), Kozhikode, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable instruments Crl.R.P. No.3088/10 2 Act and instituted S.T.No.311/08 of Special Judicial First Class Magistrate (Marad Cases), Kozhikode . During the trial of the case, complainant himself was examined as PW1 and produced Exts.P1 to P4(b). No evidence either documentary or oral was adduced from the side of 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 his debt due to the complainant. Thus accordingly, the court held that the complainant has established the case against the accused/revision petitioner and consequently found that the accused is guilty and thus convicted him u/s.138 of Negotiable Instruments Act. On such conviction, the trial court sentenced the accused/revision petitioner to undergo imprisonment till raising of court and also directed to pay an amount of Rs.40,000/- to the complainant as compensation u/s.357(3) of Cr.P.C. The default sentence is fixed as three months imprisonment. 3. Aggrieved by the order of sentence, though an appeal was filed at the instance of revision petitioner, by judgment dated 12.3.2010 in Crl.Appeal.No.96/09, the court of Additional District and Sessions Judge Fast Track (Adhoc-1), Kozhikode dismissed Crl.R.P. No.3088/10 3 the appeal confirming the conviction and sentence. It is the above conviction and sentence challenged in this revision petition. 4. I have head the learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. 5. Reiterating the stand taken by the accused/revision petitioner during the trial and appeal, submitted that the complainant has not established the transaction and also the execution and issuance of the cheque. The counsel for the revision petitioner further submitted that the courts below has committed wrong in convicting the revision petitioner. But no case is made out to interfere with the concurrent findings of the trial court as well as the lower appellate court. Therefore, I find no merit in the revision petition and accordingly the conviction recorded by the courts below against the revision petitioner u/s.138 of Negotiable Instruments Act, is approved. 6. As this court is not inclined to interfere with the conviction recorded by the court below, learned counsel for the revision petitioner submitted that breathing time may be granted to the petitioner to pay compensation amount. Having regard to Crl.R.P. No.3088/10 4 the facts and circumstances involved in the case, I am of the view that the said prayer can be considered positively. 7. It is now settled by the court below that the cheque in question is dated 18.10.2007 that too for an amount of Rs.40,000/- which belongs to the complainant, but the said amount is with the revision petitioner for the last three years. According to me, considering the above facts and settled legal position, the sentence of imprisonment ordered by court below can be confirmed but at the same time, the compensation amount ordered by the court below is liable to be enhanced slightly. In the result, this revision petition is disposed of confirming the conviction against the revision petitioner u/s 138 of Negotiable Instrument Act, as recorded by courts below. Accordingly the sentence of imprisonment ordered by court below is also confirmed. The revision petitioner is further directed to pay a compensation of Rs.46,000/- to the complainant u/s.357(3) Cr.P.C within three months from today and in default, 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 28.01.2011 to receive the sentence and to pay the compensation amount. It is made clear Crl.R.P. No.3088/10 5 that the revision petitioner is free to pay compensation either directly to the complainant or by remitting the same in the trial court, whichever subject to the satisfaction of the learned Magistrate. In case of any failure on the part of the revision petitioner in appearing before the court below at the above date and making the payment, the trial court is free to take coercive steps to secure the presence of the petitioner and to execute the sentence and for realisation of the compensation amount. Coercive steps if any pending against revision petitioner shall be deferred till 28.01.2011. This criminal revision petition is disposed of accordingly. V.K. MOHANAN, JUDGE. Sou.