IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 19TH AUGUST 2010 / 28TH SRAVANA 1932 Crl.Rev.Pet.No. 2525 of 2010() ------------------------------ CRA.562/2008 of ADDL.SESSIONS COURT (ADHOC)-II, KOTTAYAM ST.443/2006 of JUDL.MAGISTRATE OF FIRST CLASS-I, KANJIRAPPALLY .................... REVN. PETITIONER(S): --------------------- T.WILSON, AGED 50 KOTTUVIZHAKAM HOUSE , R.P.C P.O, VARIKANI, MUNDAKKAYAM. BY ADV. SRI.P.KURUVILLA JACOB RESPONDENT(S): --------------- 1. FEDERET CHITS INDIA (P) LTD KATTAPANA PO, IDUKKI DISTRICT REPRESENTED BY S.RAJEEV BRANCH MANAGER, FEDERET CHITS INDIA (P) LTD MUNDAKKAYAM BRANCH, RESIDING AT PYNGAVIL HOUSE PANACHIKKADU VILLAGE, KOTTAYAM TALUK 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. PUBLIC PROSECUTOR SRI.VENUGOPAL M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN,J --------------------- Crl.R.P.No.2525 of 2010 ------------------------------------ Dated this the 19th 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 respondent/complainant is a firm conducting chitty business and its further case is that the accused/revision petitioner is the one of the subscribers of chitty No.ECC 1/2002 and though the accused bid the Kury and received the Kury amount, he failed to pay the installment amount and towards the discharge of the liability arise out of that transaction, the accused/revision petitioner issued a cheque dated 01.09.2005 for a sum of Rs.71,150/- which, when presented for encashment was dishonoured for want of sufficient 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 Crl.R.P.No.2525 of 2010 2 complainant approached the Judicial First Class Magistrate Court- I, Kanjirappally whereupon S.T.No.443/2006 was instituted taking cognizance for the offence under Section 138 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 P10 and the oral evidence of himself as PW1. On the side of the defence DW1 was examined and produced Ext.D1 and D2. 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 3 months and also directed to pay Rs.71,150/- as compensation to the complainant and the default sentence is fixed as for a period of 45 days simple imprisonment. Crl.R.P.No.2525 of 2010 3 3. Though an appeal was filed against the above conviction and sentence, by the revision petitioner/accused, as per judgment dated 25.2.2010 in Crl.Appeal No.562/2008, the Court of the Addl. District & Sessions Judge, (Adhoc-III), Kottayam allowed the appeal only in part and the sentence of imprisonment was modified and reduced till rising of the court, and also directed the revision petitioner to pay a fine of Rs.71,150/- and in default to undergo simple imprisonment for 2 months. It is also ordered that on realisation of fine amount, the entire amount shall be paid to the complainant as compensation u/S.357(1)(b) of Cr.P.C. 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. 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. But no case is made out to interfere with the concurrent findings of the trial court as well Crl.R.P.No.2525 of 2010 4 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 the counsel for the revision petitioner submitted that, some breathing time may be granted to the petitioner to deposit the compensation amount. I am of the view that the said submission can be considered but subject to other relevant materials and circumstances involved in the case. Having regard to the facts and circumstances of this case, I am of the view that, the sentence of imprisonment as ordered by the appellate court can also be confirmed, but while maintaining the sentence to pay fine, ordered by the lower appellate court, the revision petitioner can be permitted to deposit the fine amount, with slight enhancement, within three months from today. In the result, this revision petition is disposed of confirming the conviction against the revision petitioner u/s.138 of Negotiable Instruments Act as recorded by the courts below. Accordingly, the sentence of imprisonment modified and refixed Crl.R.P.No.2525 of 2010 5 by the lower appellate court is confirmed. Accordingly, the revision petitioner is sentenced to pay fine of Rs.71,150/- within three months from today and in case of default in paying the fine within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for 45 days. The revision petitioner is directed to deposit the fine amount in the trial court on or before 16.11.2010. In case any failure on the part of the revision petitioner in depositing the fine amount in time the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence awarded against the revision petitioner. The execution of the warrant if any pending against the revision petitioner shall be referred till 16.11.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, JUDGE. pm