IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 18TH AUGUST 2010 / 27TH SRAVANA 1932 Crl.Rev.Pet.No. 2484 of 2010() ------------------------------ CRA.74/2005 of ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC)-II, KOLLAM CC.2265/2001 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOLLAM .................... REVISION PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------------------------------------------- KARUNAKARAN PILLAI.R., KUZHIVILA VEEDU, VELINALLOOR, OYOOR.P.O., KOLLAM DISTRICT. BY ADV. SRI.SAIJU S. RESPONDENT(S): RESPONDENTS/COMPLAINANT: --------------------------------------------------------------------------- 1. R.SAMEER, S/O.RAWTHER KANNU, RUBY VILLA, KALLUMTHAZHAM, KOLLAM DISTRICT, PIN - 695 001. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. PUSHPALATHA M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. --------------------------------------------- Crl.R.P.No. 2484 of 2010 --------------------------------------------- Dated this the 18th day of August, 2010 O R D E R The accused in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') approached this Court by preferring the above revision petition challenging his conviction and sentence, imposed as per judgments of the trial court as well as the lower appellate court. 2. The case of the first respondent/complainant against the revision petitioner/accused is that he availed a loan of Rs.1,00,000/- from the first respondent and towards the discharge of the said liability due to the complainant, the accused issued a cheque dated 8.7.2001 for the above sum which, when presented for encashment, was dishonoured for want of sufficient fund in the account maintained by the revision petitioner and the petitioner failed to pay the cheque amount, even though he was requested for the same by issuing a statutory notice. With Crl.R.PNO.2484 of 2010 :-2-: the said allegation, the complainant approached the Judicial First Class Magistrate Court-II, Kollam whereupon C.C.No.2265 of 2001 was instituted taking cognisance for the offence under Section 138 of the N.I.Act. During the trial of the above case, the first respondent/complainant adduced his evidence consisting of the documentary evidence such as Exts.P1 to P6 and the oral evidence of himself as PW1. No evidence either oral or documentary was adduced from the side of the defence. 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 held that, the complainant has established the case against the revision petitioner/accused and consequently, found that the accused is guilty and thus, he is convicted under Section 138 of the N.I.Act. On such conviction, the trial court sentenced the revision petitioner Crl.R.PNO.2484 of 2010 :-3-: to undergo simple imprisonment for six months and also directed to pay fine of Rs.5,000/- and the default sentence is fixed as two months simple imprisonment. It was also ordered that on recovery of the fine amount, the entire amount shall be paid to the complainant as compensation under Section 357(1) of the Cr.P.C. 3. Though an appeal was filed against the above conviction and sentence, by the revision petitioner/accused, as per judgment dated 29.4.2010 in Crl.A.No.74 of 2005, the court of the Additional District and Sessions Judge (ADHOC II), Kollam allowed the appeal only in part and thus, while confirming the conviction of the revision petitioner under Section 138 of the N.I.Act, the sentence of imprisonment is modified and reduced and accordingly, the revision petitioner is sentenced to undergo simple imprisonment till the rising of the court and the lower appellate court set aside the direction to pay fine and directed the petitioner to pay compensation of Rs.1,25,000/- Crl.R.PNO.2484 of 2010 :-4-: to the complainant under Section 357(3) of the Cr.P.C. and the default sentence is fixed as simple imprisonment for a period of three months. It is the above conviction, sentence and direction to pay the compensation, challenged in this Crl.R.P. 4. I have heard learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. 5. Reiterating the stand taken by the defence during the trial as well as the appellate stage, the learned counsel for the revision petitioner submitted that the complainant has not established the transaction, execution and issuance of the cheque. The above submission is purely on the basis of the facts, evidence and materials on record which are already considered in detail by the trial court as well as the lower appellate court. The petitioner miserably failed to make out a case so as to interfere with such concurrent findings arrived on by the courts below. Therefore, the Crl.R.PNO.2484 of 2010 :-5-: conviction recorded by the courts below is only required to be approved. I do so. 6. As this Court is not inclined to interfere with the conviction, learned counsel for the revision petitioner submitted that a breathing time may be granted to the revision petitioner to pay the compensation. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered favourably. In the result, this Criminal Revision Petition is disposed of confirming the conviction of the revision petitioner under Section 138 of the N.I.Act as recorded by the courts below. Accordingly, the sentence of imprisonment and the order to pay compensation issued by the lower appellate court are confirmed and the revision petitioner is given three months time to receive the sentence and to pay the compensation amount. In case of any default in paying the amount within the stipulated time, Crl.R.PNO.2484 of 2010 :-6-: the revision petitioner is directed to undergo simple imprisonment for four months and on realisation of the compensation amount, the entire amount shall be paid to the complainant under Section 357(3) of the Cr.P.C. Accordingly, the revision petitioner/accused is directed to appear before the trial court on 15.11.2010 to receive the sentence and to deposit the compensation amount. In case of any failure on the part of the revision petitioner in appearing before the trial court and making the deposit of compensation amount on the above date, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence. Execution of warrant, if any, pending against the petitioner shall be deferred till 15.11.2010. V.K.Mohanan, MBS/ Judge. Crl.R.PNO.2484 of 2010 :-7-: V.K.MOHANAN, J. -------------------------------------------- Crl.R.PNO.2484 of 2010 :-8-: Crl.A.NO. OF 200 ------------------------------------ J U D G M E N T DATED: -2-2010 Crl.R.PNO.2484 of 2010 :-9-: