IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 22ND JULY 2010 / 31ST ASHADHA 1932 Crl.Rev.Pet.No. 2124 of 2010() ------------------------------ CRA.461/2006 of ADDL.SESSIONS COURT (ADHOC)-II, KOTTAYAM CC.881/2002 of JUDL.MAGISTRATE OF FIRST CLASS, PALA .................... REVISION PETITIONER/APPELLANT/ACCUSED: ----------------------------------------------------------------------- SHIJU.K.B., AGED 38 YEARS, S/O. BHASKARAN, KUMBARNADAYIL VEEDU, VAKKAD.P.O., MONIPPALLY VIA., KOTTAYAM DISTRICT. BY ADVS. SRI.M.G.KARTHIKEYAN, SRI.NIREESH MATHEW. RESPONDENT(S): RESPONDENTS:COMPLAINANT & STATE: ----------------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. JOMON JOSEPH, S/O. JOSEPH, MATTATHIL HOUSE, VAKKAD.P.O., MONIPPALLY VIA., KOTTAYAM DISTRICT - 686 607. R1 BY PUBLIC PROSECUTOR SRI. C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ---------------------------------------- Crl.R.P. No. 2124 of 2010 ---------------------------------------- Dated the 22nd Day of July, 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 an amount of Rs.45,000/- was due to the complainant from the accused and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 8.3.2002 which when presented for encashment, 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 Judicial First Class Magistrate, Palai, by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted Crl.R.P.2124/10 -:2:- C.C.No.881/2002. 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 P6 as documentary evidence. No evidence, either oral or documentary, produced from the side of the defence. 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. 3. On conviction, the accused was sentenced to undergo simple imprisonment for 3 months and to pay a compensation of Rs.45,000/- to the complainant under section 357(3) Cr.P.C. The default sentence is fixed as one month simple imprisonment. On appeal, at the instance of the revision petitioner, by judgment dated 4.9.2008, in Crl.A. Crl.R.P.2124/10 -:3:- No.461/2006, the Addl. District and Sessions Judge, (Adhoc- II) , Kottayam, allowed the appeal only in part and thus while confirming the conviction, modified the sentence. Accordingly, the sentence of imprisonment reduced to imprisonment till rising of the court and he is also sentenced to pay a fine of Rs.45,000/- and also directed that on realisation of the fine amount, the entire amount shall be paid as compensation to the complainant under section 357(1) Cr.P.C. The default sentence fixed as 3 months simple imprisonment. It is the above conviction and sentence challenged in this Crl.R.P. 4. The learned counsel for the revision petitioner submitted that he has no contention on merit and the revision petitioner may be permitted to pay the compensation to the complainant directly and to effect the payment, the sentence of fine may be converted to compensation. 5. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered favourably but subject to the other facts and Crl.R.P.2124/10 -:4:- circumstances involved in the case. From the records and the findings of the courts below which approved by this court, a sum of Rs.45,000/- which belonged to the complainant is with the revision petitioner for the last 8 years. Therefore, while granting some time to pay the compensation, I am of the view that the amount can be enhanced slightly. In the result, this Crl.R.P. is disposed of confirming the conviction of the revision petitioner under section 138 of the N.I.Act as recorded by the trial court. Accordingly, while confirming the sentence of imprisonment as ordered by the lower appellate court, the sentence to pay fine imposed against the revision petitioner is set aside instead of that the revision petitioner is directed to pay a sum of Rs.60,000/-, within 5 months from today, to the complainant as compensation under section 357(3) of Cr.P.C If there is any default in paying the amount as directed above, the revision petitioner is directed to undergo simple imprisonment for a period of 4 months. Accordingly, the revision petitioner is directed to appear before the trial court on 22.12.2010 to Crl.R.P.2124/10 -:5:- receive the sentence and to pay the compensation amount. The revision petitioner is free to pay the compensation amount either directly to the complainant or by remitting the same with the trial court whichever subject to the satisfaction of the learned Magistrate. If there is any default on the part of the revision petitioner in appearing before the trial court 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 step if any pending against the revision petitioner shall be deferred till 22.12.2010. This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- Crl.R.P.2124/10 -:6:- kvm/-