IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 18TH MAY 2010 / 28TH VAISAKHA 1932 Crl.Rev.Pet.No. 1557 of 2010() ------------------------------------------ CRA.622/2008 of ADDL. SESSIONS JUDGE, FAST TRACK COURT (ADHOC), MAVELIKKARA CC.406/2008 of JUDL.MAGISTRATE OF FIRST CLASS, KAYAMKULAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ----------------------------------------------------------------- ABDUL VAHID, S/O.ALIYARU KUNJU, CHAKKALA VADAKKATHIL, KANNAMPALLY BHAGAM, KEERIKKAD VILLAGE. BY ADV. SRI.RASHEED C. NOORANAD RESPONDENT(S): COMPLAINANT ------------------------------------------------ 1. K.M.ZAMEER, S/O.HAMEEDKUTTY, KOTTAPURATHU VEEDU, KAYAMKULAM MURI, KAYAMKULAM VILLAGE. 2. STATE OF KERALA, REP. BY GOVT. PLEADER, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SRI.M.R.VENUGOPAL, PUBLIC PROSECUTOR FOR R2. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ami/ V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1557 of 2010 ------------------------------- Dated this the 18th day of May, 2010. O R D E R The revision petitioner, who is the accused in a prosecution for an offence punishable u/s.138 of Negotiable Instrument Act, challenging his conviction and sentence imposed against him by the judgment dated 3.12.2008 in C.C.No.406/08 of the Court of Judicial First Class Magistrate, Kayamkulam and the judgment dated 12.1.2010 in Crl.Appeal No.622/2008 of Additional Sessions Judge Fast Track Court (Ad Hoc), Mavelikkara. 2. The case against the revision petitioner/accused is that, he had borrowed an amount of Rs.1,50,000/- from the complainant and towards the discharge of the said debt, he had issued Ext.P1 cheque and the said cheque when presented for encashment was dishonoured due to insufficiency of fund in the account of the accused. Hence the above case was instituted and during the course of the trial, the complainant adduced his evidence consists of oral testimony of Pws.1 to 3 and documentary evidence marked as Exts.P1 to P6. From the side Crl. R.P.No.1557 of 2010 2 of the defence, DW1 was examined and exhibits were marked as X1 and X2. The trial court as well as the lower appellate court found that the accused is guilty u/s.138 of NI Act. 3. I have heard the learned counsel appearing for the revision petitioner. The learned counsel submitted that, in case this court is not inclined to interfere in the matter, the revision petitioner may be granted some time to make the payment, as ordered by the lower appellate court. 4. I have gone through the judgment of the trial court as well as the lower appellate court. The case of the complainant has fully established by the evidence adduced by the complainant. Beside the evidence of the complainant, who was examined as PW1, Pws.2 and 3 were also examined to substantiate the case of the complainant. Exts.P1 to P6, documentary evidences, also establish the case of the complainant. The revision petitioner was not having a case that, he had not received the lawyer notice issued by the complainant. When PW1 was examined, it was suggested to Crl. R.P.No.1557 of 2010 3 him that, Ext.P1 cheque was given in blank to one Nishad and the said Nishad handed over the same to the complainant and the accused had handover the cheque only to Nishad. So, according to the accused there was no transaction between himself and the complainant. But when the accused was questioned u/s.313 Cr.P.C., he put forward an entirely different case and stated that the complainant had given an amount to the said Nishad for the purpose of arranging a job for the wife of the complainant and at that time, as a security for the said transaction, the complainant had insisted for a cheque and as such he gave a cheque to the said Nishad, as a person known to both the parties and according to the defence, the said cheque had misused by the accused in this case. The trial court after elaborate consideration of the materials and evidence on record found that, the story put forward by the accused is unbelievable. The lower appellate court has also endorsed the finding of the trial court. Going by the judgments of both the trial court as well as the lower appellate court, it can Crl. R.P.No.1557 of 2010 4 be seen that the complainant has established his case against the accused/revision petitioner. But though the defence denied the transaction claimed by the complainant, as between the complainant and the accused, no evidence was adduced atleast to probabilise the case of the defence. The factual finding arrived on by the trial court that the story put forward by the accused is unbelievable, seems to be correct. Therefore no interferance is warranted. 5. The learned counsel prayed that some time may be granted to make the payment. Having regard to the facts and circumstances involved in the case, I am of the view that by giving three months time to make the payment, the interest of justice can be saved. In the result, this criminal revision petition is dismissed confirming the conviction and sentence, as ordered by the lower appellate court and the order for paying a sum as compensation of Rs.1,50,000/- to the complainant u/s.357(3) of Cr.P.C, is also confirmed. The default sentence fixed by the Crl. R.P.No.1557 of 2010 5 lower appellate court also confirmed. Accordingly, the revision petitioner is directed to appear before the trial court on 18.8.2010 to receive the sentence and to pay the compensation as directed above. If there is any default on the part of the revision petitioner, in appearing before the court and making the payment towards compensation as directed above, the trial court can initiate coercive steps against the revision petitioner, for executing the sentence and realisation of the compensation amount. V.K.MOHANAN, Judge. ami/