IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 27TH JANUARY 2010 / 7TH MAGHA 1931 Crl.Rev.Pet.No. 321 of 2010 (CRA.675/2008 of ADDL.SESSIONS COURT (ADHOC)-II, KOTTAYAM ST.280/2007 of JUDL. MAGISTRATE OF FIRST CLASS, CHENGANACHERRY) .................... REVN. PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------- DHANAPALAN.M.S, MUNJANATTU HOUSE, THURUTHY.P.O, CHANGANACHERRY. BY ADV. SMT.A.SREEKALA RESPONDENTS/ RESPONDENTS/COMPLAINANT AND STATE: --------------------------------------------------------------------------------------- 1. SUJITH CHANDRAN, S/O.P.K.CHANDRASEKHARAN NAIR, PUTHUKATTUCHIRA HOUSE, PALLIKKACHIRA.P.O, PAIPAD, CHANGANACHERRY. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI.C.S.HRITHIK. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.R.P.No. 321 of 2010 --------------------------------------------- Dated this the 27th day of January, 2010 O R D E R The accused in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act (for short 'the N.I.Act') is the revision petitioner. The trial court took cognizance upon a complaint preferred by the first respondent herein and instituted S.T.No.280 of 2007 in which the allegation is that the revision petitioner/accused borrowed a sum of Rs.1,50,000/- from the complainant and towards the discharge of such liability, the revision petitioner issued a cheque, which was dishonoured, when presented for encashment. The trial court, finally, found that the accused has committed the offence alleged against him on the basis of the evidence of the complainant consisting of oral testimony of PW1 and documentary evidence such as Exts.P1 to P6. Crl.R.P.NO.321 of 2010 :-2-: 2. The accused took a defence to the effect that he had no transaction with the complainant, but had borrowed the amount from the brother of the complainant and issued signed cheque and the same was misused by the complainant. In order to substantiate the above stand, DW.1 to 4 were examined and Exts.D1 and D2 documents were produced. After scrutiny of the evidence on record, the trial court rejected the contentions of the defence and found that the accused is guilty under Section 138 of the N.I.Act and accordingly, he was convicted and sentenced to undergo simple imprisonment for three months and to pay a fine of Rs.1,50,000/- and the default sentence is fixed as one month simple imprisonment. It was also directed to pay the amount to the complainant if the fine amount was realised from the accused. On appeal, at the instance of the revision petitioner/accused, the appellate court modified the sentence and reduced the same till rising of the court, Crl.R.P.NO.321 of 2010 :-3-: while confirming the conviction. It is the above conviction and sentence challenged in this revision petition. 3. Learned counsel for the revision petitioner submits, on the basis of the defence set up by the revision petitioner before the trial court as well as the lower appellate court, that there is no transaction between the revision petitioner and the respondent/complainant. It is the definite case that an amount of Rs.25,000/- was borrowed from the brother of the complainant, viz., one Sumesh Chandran and towards the discharge of the said liability, the revision petitioner issued a cheque. Apart from the above bare pleadings, no evidence was adduced by the revision petitioner/accused to substantiate the defence. The trial court as well as the lower appellate court has found that the complainant has proved his case beyond doubt. Even according to the revision petitioner, he has no dispute regarding the execution of the cheque in question. Ext.P1 cheque contained the signature of the Crl.R.P.NO.321 of 2010 :-4-: revision petitioner, which, according to the revision petitioner, is given as a security for the transaction between himself and the brother of the complainant, but, there is no acceptable evidence adduced by the revision petitioner to establish the said plea. In this juncture, it is relevant to note that though a formal demand notice was sent by the complainant, which was accepted by the revision petitioner/accused, no reply was given in time. On consideration of the above factual position and evidence on record, the trial court as well as the lower appellate court have found that the revision petitioner is guilty of the charge levelled against him. In the light of the above facts and circumstances, I find no reason to interfere with the orders of the courts below especially, when no question of law is raised so as to warrant the interference of this Court in this revision proceedings. Therefore, there is no merit in the revision petition. 4. Learned counsel for the revision petitioner Crl.R.P.NO.321 of 2010 :-5-: submits that some more time may be granted to remit the amount since the revision petitioner is not in a position to pay such a huge amount. I am of the view that the above submission can be considered in favour of the revision petitioner, but, at the same time, it is to be noted that the alleged transaction was during the year 2006 and the trial court passed the judgment during the year 2008. But, so far, the complainant has not received any amount. Considering the above facts, for the ends of justice, the revision petitioner can be given three months time, but at the same time he can be ordered to pay Rs.1,60,000/- (Rupees One lakh Sixty thousand only) instead of the amount fixed by the court below. Thus, the revision petitioner is directed to appear before the trial court on 30.4.2010 or the next working day, if there is no sitting on that date, to receive the sentence and to pay the above amount of Rs.1,60,000/-. If there is any failure on the part of the revision petitioner in complying with the above Crl.R.P.NO.321 of 2010 :-6-: direction, the trial court is free to take coercive steps for executing the sentence as modified by this Court. Subjected to above, this Criminal Revision Petition is disposed of. sd/- V.K.Mohanan, Judge MBS/ -true copy- P.S.TO JUDGE. Crl.R.P.NO.321 of 2010 :-7-: V.K.MOHANAN, J. -------------------------------------------- Crl.R.P.NO. OF 200 --------------------------------- ----------- O R D E R Crl.R.P.NO.321 of 2010 :-8-: DATED: -10- 2009 Crl.R.P.NO.321 of 2010 :-9-: