IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 18TH JUNE 2010 / 28TH JYAISTHA 1932 Crl.Rev.Pet.No. 1790 of 2010() ------------------------------ CRA.365/2008 of IVth Addl.District & Sessions Judge (Adhoc-II) Thodupuzha ST.946/2007 of Judicial First Class Magistrate Court-II Peerumedu. .................... REVN. PETITIONER: PETITIONER ------------------------------- RAHIM, S/O.ABDUKKA CHAPPATHU KARA, VANDIPERIYAR. BY ADV. SRI.T.A.UNNIKRISHNAN SRI.K.SATHEESH KUMAR SRI.P.P.BIJU RESPONDENTS: --------------- 1. K.M.MUHAMMED BASHEER S/O.KADHAR KANNU RAWTHER, MULAMOOTTIL VEEDU CHAPPATHU KARA, VANDIPERIYAR. 2. STATE OF KERALA REP BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.BIJU .C. ABRAHAM FOR R1 PUBLIC PROSECUTOR SMT.PUSHPALATHA.M.K THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------ Crl.R.P.No.1790 of 2010 ----------------------------- Dated this the 18th day of June, 2010. O R D E R Accused in a prosecution for the offence u/s.138 of the Negotiable Instruments Act is the revision petitioner. In this revision he is challenging his conviction and sentence u/s.138 of Negotiable Instruments Act imposed by the courts below. 2. The case of the complainant is that the revision petitioner/accused, borrowed a sum of Rs.18,000/-(Rupees Eighteen thousand only) from the complainant and towards the discharge of the said liability the accused issued Ext.P1 cheque dated 03.05.2007. When the cheque presented for encashment the same was dishonoured as there was 'no sufficient fund' in the account maintained by the accused and the accused further failed to repay the amount, even though he was requested for the same by issuing a statutory notice. Hence according to the complainant, the accused has committed the offence u/s.138 of the N.I.Act. With the same allegation, complainant approached the Crl.R.P.No.1790/2010 2 Judicial First Class Magistrate Court–II, Peerumedu by filing a formal complaint upon which cognizance was taken u/s.138 of the N.I.Act and instituted S.T.No.946/2007. During the trial, the complainant himself was examined as PW1 and produced Exts.P1 to P6 documents. Though no document was produced from the side of the defence, DWs 1 and 2 were examined. On the basis of the available materials, the trial court found that the complainant has succeeded in proving the case and accordingly found that the revision petitioner/ accused is guilty u/s.138 of N.I.Act. Thus he is sentenced to undergo simple imprisonment for three months and also directed to pay Rs.18,000/-(Rupees Eighteen Thousand only) to the complainant as compensation u/s.357(3) of Cr.P.C and three months simple imprisonment fixed as default sentence. 3. Against the above conviction and sentence though the revision petitioner has prepared an appeal by the judgment, the Court of Judicial First Class Magistrate Court–II, Peerumedu dismissing the same Crl.R.P.No.1790/2010 3 confirming the conviction and sentence. The present revision petition is filed against the above conviction and sentence. 4. Heard, learned counsel for the revision petitioner as well as the counsel for the respondent/ complainant. Counsel for the revision petitioner submitted that some time may be granted to the revision petitioner to make the payment and also submitted that the sentence of imprisonment may be deleted. Having regard to the facts and circumstances involved in this case, I am of the view that the said prayer can be considered favourably, especially in the light of the dictum laid down by the Hon'ble Supreme Court in the decision in [JT 2010(4) SC 457]( Damodar S. Prabhu V. Sayed Babalal H), and subject to other relevant facts involved in the case. 5. I have heard Mr.S.Rajiv, learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. Reiterating the Crl.R.P.No.1790/2010 4 stands taken by the accused during the trial as well as in appeal, learned counsel for the revision petitioner submits that there was no transaction between the accused and the complainant and the cheque in question, is the one not entrusted with the complainant. The trial court as well as the lower appellate court found that though the accused has taken such a defence the same was not substantiated so as to discharge the burden of rebutting the presumption available in favour of the complainant. Trial court as well as the lower appellate court has concurrently found that the revision petitioner is guilty and I find no reason to interfere with such finding in exercise of revisional jurisdiction of this court. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner u/s.138 of the N.I.Act as recorded by the courts below. Accordingly, he is sentenced to undergo imprisonment till the raising of the court and he is directed to pay a sum of Rs.18,000/-(Rupees Eighteen thousand only) as Crl.R.P.No.1790/2010 5 compensation to the complainant u/s.357(3) of Cr.P.C, in default, he is directed to undergo simple imprisonment for a period of three months. Accordingly, the revision petitioner is directed to appear before the trial court on 19.07.2010 to receive the sentence and for the payment of the compensation amount as directed by this court. In case, any failure on the part of the revision petitioner in appearing before the courts below and making payment, as directed above, the trial court is free to take coercive steps to secure the presence of the revision petitioner for executing the sentence and to realize the compensation amount. Criminal revision petition is disposed of accordingly. Sd/- V.K.MOHANAN, JUDGE. ss/. //True Copy// P.A to Judge