IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 6TH AUGUST 2010 / 15TH SRAVANA 1932 Crl.Rev.Pet.No. 2317 of 2010() ------------------------------ CRA.270/2009 of Hon'ble Addl. Sessions Court, (Adhoc-I), Manjeri CC.63/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PERINTHALMANNA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- MUHAMMED KOYA, S/O.ABDUL MOOSA, ACHAPURAM HOUSE, ELATHUR, KOZHIKODE DISTRICT. BY ADV. SRI.M.MUHAMMED SHAFI RESPONDENT(S): COMPLAINANT/STATE -------------------------------- 1. YAHIYA, S/O.MOIDU, MUTHANGAYIL HOUSE, KAKOOTH, PERINTHALMANNA, MALAPPURAM DISTRICT. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.VENUGOPAL.M.R. FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN,J --------------------- Crl.R.P.No.2317 of 2010 ------------------------------------ Dated this the 6th day of August,2010 O R D E R The accused in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') approached this Court by preferring the above revision petition challenging his conviction and sentence, imposed as per judgments of the trial court as well as the lower appellate court. 2. The case of the respondent/complainant is that the accused/revision petitioner, towards the discharge of a debt due to the complainant, issued two cheques i.e., Ext.P1 and Ext.P3 dated 20.06.2003 for a sum of Rs.50,000/-and Rs.2,00,000/- respectively which, when presented for encashment, were dishonoured for want of sufficinet fund in the account maintained by the revision petitioner and the petitioner failed to pay the cheque amount, even though he was requested for the same by issuing a statutory notice. With the said allegation, the complainant approached the Judicial First Class Magistrate court-II, Perinthalmanna whereupon C.C.No.63/2008 was instituted taking cognisance for the offence under Section 138 Crl.R.P.No.2317 of 2010 2 of the N.I.Act. During the trial of the above case, the respondent/complainant adduced his evidence consisting of the documentary evidence such as Exts.P1 to P8 and the oral evidence of himself as PW1. From the side of defence DW1 was examined and marked Ext.D1. 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 courts held that, the complainant has established the case against the revision petitioner/accused and consequently, found that the accused is guilty and thus, he is convicted under Section 138 of the N.I.Act. On such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment for a period of 6 months and set off is allowed under Section 428 of Cr.P.C. The trial court has specifically found that there is no evidence in the case to prove the capacity of the accused to pay compensation amount of Rs.2,00,000/-, hence no order for compensation issued u/s.573(3) of Cr.P.C. 3. Though an appeal was filed against the above conviction Crl.R.P.No.2317 of 2010 3 and sentence, by the revision petitioner/accused, as per judgment dated 31.05.2010 in Crl.Appeal No.270/2009, the Court of Addl. Sessions Court, (Adhoc-I), Manjeri dismissed the appeal confirming the conviction and sentence ordered by the trial court and no interference is made with respect to the sentence. It is the above conviction and sentence challenged in this revision petition. 4. I have heard the learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. 5. Learned counsel for the revision petitioner fairly conceded that he has not contention on merit and the only prayer of the revision petioner is that the period of sentence awarded by the court below may be reduced to the period which he had undergone and he may be released from jail. 6. Having regard to the facts and circumstances of the case, I am of the view that the said submission can be considered favourably. 7. The trial court has specifically found that the accused/revision petitioner has no financial capacity to pay the Crl.R.P.No.2317 of 2010 4 compensation of, at least the cheque amount and therefore, the trial court has not ordered any direction to pay compensation u/s.357(3) of the Cr.p.C. The learned counsel for the revison petitoner submitted that the revision petitioner had already undergone substantial period of imprisonment from 27.9.2007 to 16.1.2008 and from 6.3.2008 to 31.3.2008 and thereafter, from 17.7.2010 till this date. The trial court has already allowed the benefit of set off u/s.428 of Cr.P.C. 8. Considering the above facts and circumstances involved this case, I am of the view that the sentence ordered by the trial court, which approved by the appellate court, can be modified and reduced into 4 months simple imprisonment and he can be granted the benefit of set off u/s.428 of Cr.P.C. 9. Accordingly, while confirming the conviction of the revision petitioner under Section 138 of the N.I.Act as recorded by the courts below, the sentence is modified and reduced and he is sentenced to undergo simple imprisonment for a period of four months. Set off under Section 428 of Cr.P.C. is also allowed. Therefore, reckoning the above period, which he had already undergone from the total period of sentence now imposed by this Crl.R.P.No.2317 of 2010 5 court, the revision petitioner is entitled to get released from jail if he is not required in any other case. Therefore, I direct the jail Authroties, viz., Central Prison, Kannur to release the petitioner forthwith from jail if he is not required in any other case. The Registry is directed to send the gist of the order to the concerned jail authorities. V.K.MOHANAN, JUDGE. pm