IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 20TH SEPTEMBER 2010 / 29TH BHADRA 1932 Crl.Rev.Pet.No. 2763 of 2010() ------------------------------------ (CRA.418/2009 of I ADDL. SESSIONS COURT, PALAKKAD CC.33/2009 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, OTTAPPALAM) .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED ----------------------------------------------------- PRABHAKARAN NAIR.P, 57 YESRS, PANDALIL, SOWPARNIKA, ARAMKULAM ROAD, THRIKANKODE AMSOM AND DESOM,OTTAPALAM TALUK PALAKKAD DISTRICT. BY ADVS. SMT.T.D.RAJALAKSHMI SRI.R.SREEHARI RESPONDENT(S)/STATE & COMPLAINANT ------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. 2. S.SOMASUNDARAN, S/O.SUBRAMANIAN MUTHALI, KIZHAKKATHALAKKAL, ALAPPARAMBU THERUVIL, KANNIAMPURAM AMSOM & DESOM, OTTAPALAM TALUK KANNIYAMPURAM 679 104. R1 BY PUBLIC PROSECUTOR SRI. V. TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SVS/ V.K. MOHANAN, J ---------------------- Crl.R.P.No. 2763 OF 2010 ----------------------------------- Dated this the 20th day of September, 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 liability due to the complainant, the accused issued Ext.P1 cheque dated 09.12.2004 for an amount of Rs.50,000/- 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 formal demand notice and thus the revision petitioner has committed the offence punishable under section 138 of Negotiable Instruments Act. With the above allegations, the complainant approached the Judicial First Class Magistrate Court-I, Ottappalam, by filing a formal complaint, upon which cognizance was taken u/s.138 of Crl.R.P. No.2763/10 2 Negotiable instruments Act and instituted C.C.No.121/2005. When the case was transferred to Judicial First Class Magistrate Court - II, Palakkad, and the case is renumbered as CC.33/06. During the trial of the case, complainant himself adduced evidence as PW1 and produced Exts.P1 to P4. From the side of the defence, no document was produced, DW1 was examined. 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 the 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. 3. On such conviction, the trial court sentenced the accused/revision petitioner to undergo simple imprisonment for three months and he is also sentenced to pay a fine of Rs.50,000/- to the complainant U/s.357(3) Cr.P.C. The default sentence is fixed as fifteen days simple imprisonment. 4. Though an appeal was filed challenging the conviction and sentence, by judgment dated 17.8.2010 in Criminal Appeal Crl.R.P. No.2763/10 3 No.418/2005, the Court of Session Palakkad allowed the appeal only in part and thus while upholding the conviction of the revision petitioner u/s.138 of N.I Act, the sentence of simple imprisonment imposed by the trial court is set aside and instead of that the accused is sentenced to pay fine of Rs.51,000/- and the default sentence is fixed as simple imprisonment for one month. It is also ordered that on realisation of the fine amount, Rs.50,000/- shall be paid to the complainant as compensation u/s.357(1) B Cr.P.C. It is the above conviction and sentence challenged in this revision petition. 5. I have head the learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. 6. 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 Crl.R.P. No.2763/10 4 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. 7. As this court is not inclined to interfere with the order of conviction recorded by the courts below, learned counsel for the revision petitioner submitted that breathing time may be granted to revision petitioner to pay the fine amount. According to me, the said submission can be considered favourably and two months time can be granted to pay the fine amount but subject to slight enhancement in the fine amount. In the result, this revision petition is disposed of confirming the conviction against revision petitioner u/s 138 of Negotiable Instrument Act, as recorded by the courts below. Thus, while confirming the direction to pay fine, the fine amount fixed by court below is enhanced to the tune of Rs.53,000/- and the revision petitioner is granted two months time to deposit the fine amount. The default sentence fixed by the appellate court will be attracted only if he fails to pay the fine amount within the above stipulated time. Accordingly the revision petitioner is directed to deposit the fine amount of Rs.53,000/- on or before 20.11.2010 in the trial court and if there is any failure in Crl.R.P. No.2763/10 5 depositing the fine amount within the above stipulated time, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence of fine and for realisation of the amount. On realisation of the fine amount, a sum of Rs.51,500/- shall be paid to the complainant as compensation u/s. 357(1)(b) of Cr.P.C. The remaining amount shall be deposited in the State exchequer. The coercive steps if any pending, shall be deferred till 20.11.2010. This criminal revision petition is disposed of accordingly. Sd/- V.K. MOHANAN, JUDGE. Sou. The words “Judicial First Class Magistrate-II, Palakkad” occurring in the second and third lines and number “CC.33/06” occurring in the third line on the second page of the final order in Crl. RP 2763/2010 dated 20/09/2010 are corrected respectively as “Judicial First Class Magistrate-II, Ottappalam”and “CC.33/2008” as per order dated 19/10/2010 in Crl.M.A.9625/2010. Sd/- Registrar (Judicial)