IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 10TH JUNE 2010 / 20TH JYAISTHA 1932 Crl.Rev.Pet.No. 1749 of 2010() ------------------------------ CRA.610/2008 of SESSIONS COURT, PALAKKAD ST.2251/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PALAKKAD .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED :- ------------------------------------------------------------------- S.RAMESH, S/O.SANKARAN, AGED 40 YEARS, ANARAPPADAM KALAM, CHITUR TALUK, PALAKKAD DISTRICT. BY ADV. MR.T.K.SANDEEP RESPONDENT(S): --------------- 1. MADHAVANKUTTY, AGED 60 YEARS, S/O.LATE BALAKRISHNAN NAIR, SUDHARSANAM VEEDU,KODUNTHIRAPULLY, PALAKKAD TALUK. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.M.R.VENUGOPAL THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt V.K.MOHANAN, J. ----------------------------- Crl.R.P.No.1749 of 2010 --------------------------------- Dated this the 10th day of June 2010 O R D E R The accused in a prosecution for the offence under Sec.138 of the N.I.Act is the revision petitioner, as he is aggrieved by the conviction and sentence imposed against him. 2. The case of the complainant is that the revision petitioner borrowed a sum of Rs.1,00,000/- from him and issued two cheques bearing dated 15.5.2006 for Rs.50,000/- each to the complainant and when the said cheques presented for encashment, the same were dishonoured for want of sufficient fund in the account of the accused. Consequently, a lawyer notice was sent demanding to clear the cheque amount but no amount was paid. With the above allegation, the complainant approached the Judicial Crl.R.P.No.1749 of 2010 : 2 : First Class Magistrate Court-I, Palakkad by filing a complaint, upon which cognizance was taken under Sec.138 of the N.I.Act and instituted S.T.No.2251/2006. During the trial of the case, the complainant himself gave evidence as PW1 and he had also produced Exts.P1 to P5 documents. No evidence was adduced from the side of the defence. Based upon the available materials and evidence, the trial court found that the accused is guilty of the offence and he has committed offence under Sec.138 of the N.I.Act. Thus, the revision petitioner is convicted for the said offence and sentenced him to undergo simple imprisonment for one year and also directed to pay a compensation of Rs.1,00,000/- to PW1 under Sec.357(3) of Cr.P.C. and default sentence is fixed as three months simple imprisonment. 3. In appeal, at the instance of the revision petitioner/accused, by judgment dated 17.12.2009 in Crl.A.No.610/2008 of the Sessions Court, Palakkad confirmed the conviction but certain modifications were Crl.R.P.No.1749 of 2010 : 3 : made with respect to the sentence. Accordingly, the sentence of imprisonment awarded by the trial court is set aside and he is sentenced to pay a fine of Rs.1,05,000/- and in default to undergo simple imprisonment for one month. It is also ordered that a sum of Rs.1,00,000/- out of the fine amount to be recovered is to be paid to the 1st respondent/complainant as compensation under Sec.357(1) of Cr.P.C. It is the above conviction and sentence challenged in this revision petition. 4. I have heard the learned counsel for the revision petitioner and also perused the judgments of the courts below. 5. On a careful consideration of the arguments advanced by the learned counsel and on perusal of the judgments of the courts below, it appears that the revision petitioner has not disputed the signature in Exts.P1 and P2 cheques. He is also not disputed the execution and issuance of those cheques. According to the revision Crl.R.P.No.1749 of 2010 : 4 : petitioner, the said cheques happened to be issued when he received deposit from the complainant, when the complainant was appointed as his employee. But the trial court as well as the lower appellate court repelled those contentions as there was no evidence to substantiate the said plea. In this case, it is relevant to note that Exts.P1 and P2 cheques produced from the possession of the complainant which are duly signed by the revision petitioner and in support of the prosecution allegation, PW1 has also deposed and he had also produced certain other documents. In such a situation, it is highly erst upon the accused/revision petitioner to give a proper account as to how the cheques in question reached in the hands of the complainant. Admittedly, no evidence is adduced from the side of the defence. When the complainant sent the statutory notice the same was refused at accept by the accused/revision petitioner. No reply was given. The only attempt made by the accused to raise his plea and Crl.R.P.No.1749 of 2010 : 5 : substantiate the case, only when PW1 was cross examined, but nothing was brought out on record to disbelieve the version given by PW1. In the above factual scenario I find no reason to interfere with the findings arrived on by the courts below. Such concurrent findings of the courts below is not liable to be interfered, when the execution and issuance of cheques are not disputed by the revision petitioner and the revision petitioner is miserably failed to rebut the presumption. Therefore there is no merit in the revision petition. 6. The learned counsel for the revision petitioner submitted that some breathing time may be granted to the revision petitioner to deposit the fine amount. According to me, the said submission can be considered and two months time can be granted to the revision petitioner to deposit the fine amount. In the light of the above facts and circumstances, this revision petition is disposed of confirming the Crl.R.P.No.1749 of 2010 : 6 : conviction of the revision petitioner/accused under Sec.138 of the N.I.Act and also the sentence of fine imposed by the lower appellate court. Accordingly, the revision petitioner is directed to appear before the trial court on 9.9.2010 to deposit the fine amount as ordered by the lower appellate court. In case any failure on the part of the revision petitioner in appearing before the trial court as directed in this judgment, the trial court is free to take coercive steps against the revision petitioner to execute the sentence. V.K.MOHANAN, JUDGE. Jvt