IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 26TH JULY 2010 / 4TH SRAVANA 1932 Crl.Rev.Pet.No. 2236 of 2010() ------------------------------ CRA.670/2007 of II ADDL.SESSIONS COURT, KOLLAM CC.1121/2003 of JUDL.MAGISTRATE OF FIRST CLASS, PARAVOOR .................... REVISION PETITIONER(S): APPELLANT/ACCUSED: ---------------------------------------------------------------------------- CHANDRIKA, AGED 53 YEARS, CHANDRIKA BHAVAN (PRIYANKA), PALLIMON, CHATHANNUR, KOLLAM DISTRICT. BY ADV. SRI.O.D.SIVADAS RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE: ------------------------------------------------------------------------------------------ 1. G.MANIDAS, CHARUVILA VEEDU, KARIMPALOOR, PARIPALLY VILLAGE, KOLLAM. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. NAZAR C.M. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ---------------------------------------- Crl.R.P. No.2236 of 2010 ---------------------------------------- Dated the 26th 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.50,450/- was due to the complainant from the accused, being the sale consideration of gold ornaments purchased from him and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 29.3.2003 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 pay the cheque amount in spite of a formal notice caused to issue by him. With the said allegation, the complainant approached the Judicial First Class Magistrate, Paravur, CRRP 2236/10 -:2:- by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted C.C.No.1121/2003. 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 P6 as documentary evidence. No evidence produced from 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 has 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 3 days and also ordered to pay compensation of Rs.50,450/- to the complainant under section 357(3) Cr.P.C. and in default, she is directed to undergo simple CRRP 2236/10 -:3:- imprisonment for a further period of two months. 3. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 24.3.2010 in Crl.A.No.670/2007 the court of II Addl. Sessions Judge, Kollam dismissed the appeal confirming the conviction but the sentence of imprisonment is modified and accordingly, she is sentenced to undergo simple imprisonment till rising of the court and the compensation amount ordered by the trial court is converted into sentence of fine. Accordingly, the revision petitioner is sentenced to pay a fine of Rs.50450/- and the default sentence is fixed as simple imprisonment for 3 days. It is also ordered that on realisation of fine amount, the same shall be paid to the complainant. 4. Reiterating the contention taken by the defence during the trial and appellate stages, the learned counsel submitted that the complainant has not established the transaction, execution and issuance of the cheque and therefore, the courts below are absolutely wrong in CRRP 2236/10 -:4:- convicting the revision petitioner-accused imposing sentence against him. The trial court as well as the lower appellate court has concurrently found in favour of the complainant and against the revision petitioner-accused. Though the revision petitioner is heard elaborately, nothing is brought out to take a different view by interfering with the concurrent findings of the courts below. All the contentions are based upon the facts and evidence on record which were elaborately considered by the courts below. Therefore, I find no reason to interfere with such concurrent finding of the courts below and accordingly, the conviction recorded by the courts below is confirmed. 5. The learned counsel submitted that a breathing time may be granted to the revision petitioner to pay the fine amount. Having regard to the facts and circumstances of the case, I am of the view that while granting time to pay the fine, a slight enhancement can be made with respect to the fine amount . In the result, the conviction is confirmed. CRRP 2236/10 -:5:- Accordingly, while confirming the sentence of imprisonment ordered by the lower appellate court, the revision petitioner is sentenced to pay a fine of Rs.53,000/- within three months from today and in case of failure in paying fine amount within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for one month. Accordingly, the revision petitioner is directed to appear before the trial court on 26.10.2010 to receive the sentence and to deposit the fine amount. On realisation of the fine amount, the entire amount shall be paid to the complainant under section 357(1)(b) Cr.P.C. In case of any failure in appearing before the trial court on 26.10.2010, the trial court is free to take coercive steps against the revision petitioner to secure her presence and to execute the sentence and for realisation of the amount. This Crl.R.P. is disposed of accordingly. V.K. MOHANAN JUDGE. kvm/- CRRP 2236/10 -:6:- kvm/- .