IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 4TH OCTOBER 2010 / 12TH ASWINA 1932 Crl.Rev.Pet.No. 2888 of 2010() ------------------------------------ CRA.333/2009 of III ADDL.SESSIONS COURT, KOLLAM ST.56/2009 of JUDICIAL FIRST CLASS MAGISTRATE COURT-IV, KOLLAM DISTRICT) .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------ SOHANLAL, AGED 29 YEARS, S/O.SIVANANDAN, ARATTUVILA PADINJATTATHIL, PERUMPUZHA P.O., KUNDARA, KOLLAM. BY ADV. SRI.A.X.VARGHESE RESPONDENT(S): RESPONDENTS/COMPLAINANT --------------------------------------------------------- 1. SHYLAJA, SUJA BHAVAN, PUNNAMUKKU, KUNDARA, KOLLAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.P.N. SUMANGALA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SVS/ V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2888 of 2010 -------------------------------------------------- Dated this the 04th day of October, 2010. O R D E R The accused in a prosecution for an offence u/s.138 of Negotiable Instruments Act is the revision petitioner, as he is aggrieved by the order of conviction and sentence imposed by the courts below. 2. The case of the complainant is that the accused/revision petitioner borrowed a sum of Rs.50,000/- and towards the discharge of that debt, due to the complainant, he issued a cheque dated 10.07.2007 for a sum of Rs.50,000/-, which when presented for encashment dishonoured and the cheque amount was not repaid inspite of a formal demand notice and thus the revision petitioner has committed the offence punishable u/s.138 of Negotiable Instruments Act. With the same allegation, the complainant approached the Judicial First Class Magistrate Court-I, Kollam, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.1314/2007. Thereafter the case was Crl. R.P.No.2888/2010 2 transferred to the Court of Judicial First Class Magistrate- IV, Kollam wherein the case numbered as S.T. No.56/09. During the trial of the case, PW1 was examined from the side of the complainant and Exts.P1 to P6 were marked. From the side of the defence, Dws 1 to 5 were examined and produced Ext.D1 to D5. On the basis of the available materials and evidence on record, the trial court has found that the cheque in question was issued by the revision petitioner/accused for the purpose of discharging his debt due to the complainant. Thus accordingly the court found that, the complainant has established the case against the accused/revision petitioner and consequently found that the accused is guilty and thus convicted him u/s.138 of Negotiable Instruments Act. On such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment till the raising of the court and also sentenced to pay a fine of Rs.50,000/- and the default sentence is fixed as 1 month simple imprisonment. It is also ordered that on realisation of fine amount, it shall be paid to the Crl. R.P.No.2888/2010 3 complainant u/s. 357(1)(b) of Cr.P.C. 3. Though an appeal was filed at the instance of the revision petitioner/accused, by judgment dated 20.07.2010 in Crl.Appeal No.333/2009, the Court of IIIrd Additional Sessions Judge, Kollam, dismissed the appeal, confirming the conviction and sentence. It is the above conviction and sentence challenged in this revision petition. 4. I have heard the learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. 5. Reiterating the stand taken by the accused/revision petitioner during the trial and appeal, submitted that the complainant has not established the transaction and also the execution and issuance of the cheque. But no case is made out to interfere with the concurrent findings of the trial court as well as the lower appellate court. Therefore, I find no merit in the revision petition and accordingly the conviction recorded by the courts below against the revision petitioner u/s.138 of Negotiable Instruments Act, is Crl. R.P.No.2888/2010 4 approved. 6. As this court is not inclined to interfere with the conviction, the counsel for the revision petitioner submitted that, some breathing time may be granted to the petitioner to deposit the fine amount and to receive the sentence of imprisonment. I am of the view that the said submission can be considered favourably. In the result, this revision petition is disposed of confirming the conviction against the revision petitioner u/s.138 of Negotiable Instruments Act as recorded by the courts below and also confirming the sentence of imprisonment and ordered to pay a fine of Rs.50,000/- (Rupees Fifty thousand only). The petitioner is granted 45 days time to pay the fine amount and also to serve the sentence modified by the appellate court. It is made clear that the default sentence fixed by the appellate court will be attracted only in case of default on the part of the revision petitioner to deposit the fine amount within 45 days from today. Crl. R.P.No.2888/2010 5 Accordingly the revision petitioner is directed to appear before the trial court on 18.11.2010. Criminal revision petition is disposed of accordingly. Sd/- V.K.MOHANAN, Judge. ss/. // True Copy// P.A to Judge