IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 4TH NOVEMBER 2010 / 13TH KARTHIKA 1932 Crl.Rev.Pet.No. 3242 of 2010() ------------------------------ CRA.643/2009 of THE COURT OF ADDITIONAL SESSIONS JUDGE (ADHOCII), ERNAKULAM CC.146/2002 of JUDL.MAGISTRATE OF FIRST CLASS-II, ERNAKULAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- JOHNY THOMAS,AGED 51 YEARS, S/O.EYO THOMAS,PATTUPARAMBIL HOUSE,ETTUKATTU TEMPLE ROAD,ELAMAKKARA,NOW RESIDING AT MAK'S COMPLEX,KALOOR,KOCHI-682017. BY ADV. SRI.P.B.ASOKAN SMT.P.LATHA SRI.P.J.UNNIKRISHNAN SRI.P.B.AJOY SMT.PRAISHEEL PRAKASAM SRI.V.PIN VARGHESE SRI.NIKHIL GEORGE (PALAKKAPPILLIL) SMT.ANU ASOK RESPONDENTS(S): COMPLAINANT/RESPONDENT/RESPONDENT ------------------------------------------------ 1. T.T.MATHEW,AGED 55 YEARS,S/O.THOMAS, THATTIL VEETTIL,KATHIRIKKADAVU DESOM, ELAMKULAM VILLAGE,KANAYANNOOR TALUK, ERNAKULAM DISTRICT. 2. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.P.N.SUMANGALA. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.R.P.No. 3242 of 2010 --------------------------------------------- Dated this the 4th day of November, 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 first respondent/complainant against the revision petitioner/accused is that the accused borrowed a sum of Rs.2 lakhs from the complainant and towards the discharge of the liability due to the complainant, the accused issued a cheque dated 15.9.2001 for the above sum 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 Crl.R.PNO. 3242 of 2010 :-2-: the said allegation, the complainant approached the Judicial First Class Magistrate Court-II,Ermakulam whereupon C.C.No.146 of 2002 was instituted. Besides the above case against the revision petitioner, the very same complainant has preferred two other cases before the same court and they were numbered as C.C.Nos.568 and 569 of 2002 and all the above cases were tried jointly and thus, on the side of the complainant, the first respondent/ complainant adduced his evidence consisting of the documentary evidence such as Exts.P1 to P20 and the oral evidence of PWs.1 to 3. Besides that, Exts.X1 and X2 were also produced and marked from the side of the defence. From the side of the defence, DW1 was examined and Ext.D1 was marked. 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. By a common judgment dated Crl.R.PNO. 3242 of 2010 :-3-: 18.7.2009, the trial court, while acquitting the accused in C.C.Nos.568 & 569 of 2002, convicted him in C.C.No.146 of 2002 and sentenced the revision petitioner/accused to undergo simple imprisonment for three months and to pay fine of Rs.3,20,000/-. It was also ordered that in default, to undergo the simple imprisonment for two months and the fine amount, on realisation, was ordered to be given to PW1. 3. Though an appeal was filed against the above conviction and sentence by the revision petitioner/accused, as per judgment dated 20.7.2010 in Crl.A.No.643 of 2009, the court of the Additional Sessions Judge(ADHOC-II), Ernakulam allowed the appeal only in part and thus, while confirming the conviction, the sentence of imprisonment is modified and reduced and accordingly, the revision petitioner is sentenced to undergo simple imprisonment till the rising of the court and to pay a compensation of Rs.3,50,000/- to the complainant under Section 357(3) of the Cr.P.C. and the default sentence is fixed as simple Crl.R.PNO. 3242 of 2010 :-4-: imprisonment for a period of three months. It is the above conviction, sentence and direction to pay the compensation, challenged in this Crl.R.P. 4. I have heard learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. 5. Reiterating the stand taken by the defence during the trial as well as the appellate stage, the learned counsel for the revision petitioner submitted that the complainant has not established the transaction, execution and issuance of the cheque. The above submission is purely on the basis of the facts, evidence and materials on record which are already considered in detail by the trial court as well as the lower appellate court. The petitioner miserably failed to make out a case so as to interfere with such concurrent findings arrived on by the courts below. Therefore, the conviction recorded by the courts below is only required to be approved. I do so. Crl.R.PNO. 3242 of 2010 :-5-: 6. As this Court is not inclined to interfere with the order of conviction, the learned counsel for the revision petitioner submitted that a breathing time may be granted to the revision petitioner to pay the compensation. I see no reason to reject the above submission. 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 in the amount of compensation. Accordingly, this Criminal Revision Petition is disposed of confirming the conviction of the revision petitioner under Section 138 of the N.I.Act as recorded by the courts below. Accordingly, while confirming the sentence of imprisonment, the order to pay compensation, the compensation amount and the default sentence, the revision petitioner is granted 45 days time to pay the compensation amount. It is made clear that the default sentence fixed by the appellate court will be attracted only Crl.R.PNO. 3242 of 2010 :-6-: if there is any default from the part of the revision petitioner in paying the compensation amount within 45 days from today. Accordingly, the revision petitioner is directed to appear before the trial court on 17.12.2010 to receive the sentence and to pay the compensation amount. In case of any failure on the part of the revision petitioner in appearing before the trial court and paying the compensation amount on the above date, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence. Coercive steps, if any, pending against the petitioner shall be deferred till 17.12.2010. V.K.Mohanan, Judge. MBS/ Crl.R.PNO. 3242 of 2010 :-7-: V.K.MOHANAN, J. -------------------------------------------- Crl.R.PNO. 3242 of 2010 :-8-: Crl.A.NO. OF 200 ------------------------------------ J U D G M E N T DATED: -2-2010 Crl.R.PNO. 3242 of 2010 :-9-: