IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 31ST MARCH 2008 / 11TH CHAITHRA 1930 Crl.Rev.Pet.No. 36 of 2008() ---------------------------- CRA.445/2006 of SESSIONS COURT, KASARAGOD CC.338/2005 of JFCM-II, KASARAGOD .................... REVN. PETITIONER: APPELLANT/ACCUSED: ------------------------------------ MOOSA, AGED 46 YEARS, S/O. KUNHI AHAMMED, ALI MANZIL, MOOSODI, UPPALA P.O., KASARAGOD. BY ADV. SRI.T.B.SHAJIMON SMT.GOVINDU P.RENUKADEVI RESPONDENTS: COMPLAINANT: ------------------------- 1. MANJUNATH ALI, AGED 31 YEARS, S/O. MARIYAPPA, NEAR AILA RAILWAY GATE, KASARAGOD. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA BY PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 31/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ```````````````````````````````````````````````````` Crl.R.P. No. 36 OF 2008 ```````````````````````````````````````````````````` Dated this the 31st day of March, 2008 O R D E R This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 138 of the N.I Act. After the appellate modification of the sentence, the petitioner faces the sentence of imprisonment till rising of court. There is a further direction to pay an amount of Rs.90,000/- as compensation under section 357(3) Cr.P.C. and in default to undergo simple imprisonment for a period of two months. 2. The cheque is for an amount of Rs.90,000/-. It was issued in the year 2003. The cheque was dishonoured on the ground of insufficiency of funds. The complainant, after observing the statutory time table scrupulously, came to the court with a complaint alleging commission of the offence punishable under Section 138 of the Negotiable Instruments Crl.R.P.No.36/08 : 2 : Act. 3. Signature in the cheque is admitted. Notice of demand did not evoke any response. No defence evidence whatsoever was adduced. It was contended that the cheque was not issued for the due discharge of any legally enforceable debt or liability to the complainant but was issued to the brother-in-law of the complainant as security. 4. The courts below concurrently came to the conclusion that the complainant has succeeded in establishing all elements of the offence punishable under Section 138 of the N.I. Act. Accordingly, they proceeded to pass the impugned concurrent judgments. 5. Called upon to explain the nature of challenge, which the petitioner wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner does not strain to assail the verdict of guilty and conviction on merits. The learned counsel only contends that the imposition of the default sentence is not legal, correct or justified in the Crl.R.P.No.36/08 : 3 : light of the decision in Ahammedkutty @ Kunhappu Vs. E.P.Abdullakoya @ Kunhi Bappu and another [2008 (1) KLT 851 SC]. 6. I have already held in another decision rendered today in Crl.R.P.No.15/08 that the decision in Ahammedkutty cannot be held to have binding sway in the light of the earlier decisions on the same legal question rendered by the co- equal Benches of the Supreme Court in Harikrishnan and State of Haryana Vs. Sukhbir Singh & others [AIR 1988 SC 2127] and Suganthi Suresh Kumar Vs. Jagdeeshan [AIR 2002 SC 681]. The subsequent decision rendered without reference to the two earlier decisions of the point must hence be held to be not sufficient to alter the dictum in Harikrishnan and Suganthi. Therefore, the said only contention raised cannot help the petitioner. 7. The learned counsel for the petitioner prays that the petitioner may be given some further time to make the payment and avoid the default sentence. The cheque was Crl.R.P.No.36/08 : 4 : issued in the year 2003 and the complainant has been compelled to fight two rounds of legal battle by now and to wait till now for the redressal of his grievances. I do not find much merit in the prayer for any further time but I am satisfied that some leniency can be shown and the petitioner can be granted breathing time to raise and deposit the compensation amount and thus avoid the default sentence. 8. This revision petition is, in these circumstances, dismissed but with the direction that the sentence imposed shall not be executed till 2.5.2008. On or before that date, the petitioner shall appear before the learned Magistrate for execution of the sentence imposed by the learned Sessions Judge in appeal. (R.BASANT, JUDGE) aks