IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 20TH JULY 2010 / 29TH ASHADHA 1932 Crl.Rev.Pet.No. 2078 of 2010() ------------------------------ CRA.555/2008 of ADDL. SESSIONS COURT (ADHOC) III, PALAKKAD STC.354/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT-III, PALAKKAD .................... REVISION PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------------------------------------------- K.SIVANARAYANAN, S/O.KITTA, RESIDING AT EDUPPUKULAM, ELAPPULLY, PALAKKAD. BY SRI.V.CHITAMBARESH, SENIOR ADVOCATE, BY ADV. SRI.T.C.SURESH MENON, SRI.C.A.ANOOP. RESPONDENT(S): RESPONDENTS/NOT PARTY/COMPLAINANT: ---------------------------------------------------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SHAILESH, S/O.K.V.MANI, RESIDING AT KUTTATHUKALAM, KINASSERY, PALAKKAD. R1 BY PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ---------------------------------------- Crl.R.P. No. 2078 of 2010 ---------------------------------------- Dated the 20th 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.50,000/- was due to the complainant from the accused and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 20.11.2006 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 issued by him. With the said allegation, the complainant approached the Judicial First Class Magistrate-III, Palakkad by filing a formal complaint upon which cognizance was taken under CRRP 2078/10 -:2:- Section 138 of the N.I.Act and instituted S.T.No.235/2007. 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 P4(2) as documentary evidence. No evidence produced fr0m 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. On such conviction, the trial court sentenced the revision petitioner-accused to undergo simple imprisonment for one month and also sentenced to pay a fine of Rs.50,000/-, in default, he is directed to undergo simple imprisonment for a further period of one month. It is also ordered that on realisation of the fine amount, the same shall be paid to the CRRP 2078/10 -:3:- complainant. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 5.2.2010 in Crl.A.No.555/2009, the court of Addl. Sessions Judge, (Fast Track-III), Palakkad, allowed the appeal only in part and thus while confirming the conviction of the revision petitioner, the sentence of imprisonment is set aside and the revision petitioner is sentenced to pay a fine of Rs.50,000/- and the default sentence awarded by the trial court is confirmed. It is also ordered that on realisation of the the fine amount, the same shall be given to the complainant as compensation. 3. The learned counsel for the revision petitioner submitted that a breathing time may be granted to the revision petitioner to pay the fine amount. 4. 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 slight enhancement of the fine amount. The cheque in question is dated 20.11.2006 for an amount of Rs.50,000/- and thus as CRRP 2078/10 -:4:- per the record and findings of the courts below, which approved by this court, a sum of Rs.50,000/- which belonged to the complainant is with the revision petitioner for the last four years. Therefore, while granting some time to the revision petitioner, the fine amount can be enhanced slightly. In the result, this Crl.R.P is disposed of confirming the conviction recorded by the courts below for the offence under section 138 of the N.I.Act. Thus while confirming the sentence of fine, the fine amount is enhanced to Rs.57,500/- and the default sentence is also enhanced to simple imprisonment for two months. The revision petitioner is further directed to pay the fine amount within three months from today. Accordingly, the revision petitioner is directed to appear before the trial court on 20th October, 2010 to pay the fine amount. On realisation of the fine amount, a sum of Rs.55,000/- shall be paid to the complainant under section 357 (1)(b) Cr.P.C. and the remaining sum of Rs.2500/- shall be deposited into State Exchequer. If there is any default on the part of the revision petitioner in appearing before the trial CRRP 2078/10 -:5:- court as directed above, the trial court is free to take coercive steps against the revision petitioner to secure his presence and to realise the fine amount. Coercive steps if any pending against the revision petitioner shall be deferred till 20.10.2010. The Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- CRRP 2078/10 -:6:-