IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 13TH OCTOBER 2010 / 21ST ASWINA 1932 Crl.Rev.Pet.No. 2907 of 2010 (C) ------------------------------ CRA.131/2008 of SESSIONS COURT, PATHANAMTHITTA CC.1122/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, PATHANAMTHITTA .................... REVN. PETITIONER/APPELLANT/ACCUSED -------------------------------------------------------------- LALGY KURIAN, S/O. T.K.KURIAN, THEKKETHU HOUSE, KOZHENCHERRY P.O., PATHANAMTHITTA. BY ADV. SRI.V.PHILIP MATHEWS RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE ------------------------------------------------------------------------------------- 1. SHERLY KAMALASANAN, KAVUKANDATHIL HOUSE, VETTIPPURAM, PATHANAMTHITTA , PIN 691538. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR, SRI.SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2907 of 2010 ------------------------------- Dated this the 13th 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.1,50,000/- from the complainant and towards the discharge of the debt due to the complainant, he issued a cheque dated 29.4.2004 for a sum of Rs.1,50,000/-, which when presented for encashment dishonoured, as there was no sufficient fund in the account maintained by the accused 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 said allegation, the complainant approached the Judl. First Class Magistrate Court-I, Pathanamthitta, by filing a formal 2 Crl. R.P.No.2907 of 2010 complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.1122/04. During the trial of the case, Pws.1 and 2 were examined and Exts.P1 to P6 were marked, from the side of the complainant. From the side of the defence, DW1 was examined and Exts.D1 and D2 were produced and marked. 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 for 4 months and to pay a fine of Rs.1,25,000/- and the default sentence was fixed as 3 months simple imprisonment. It is also ordered that on realisation of the fine amount, the same shall be given to the complainant as compensation u/s.357(1)(b) of Cr.P.C. 3 Crl. R.P.No.2907 of 2010 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 21.5.2010 in Crl.A.131/08, the Court of Sessions Judge-Pathanamthitta, allowed the appeal only in part and thus while confirming the conviction, the substantive sentence is reduced to one day simple imprisonment ie., till the rising of the court and instead of fine, the revision petitioner is directed to pay compensation of Rs.1,25,000/- to the complainant u/s.357(3) of Cr.P.C. and the default sentence is fixed as 3 months simple imprisonment. 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 4 Crl. R.P.No.2907 of 2010 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 approved. 6. As this court is not inclined to interfere with the order of conviction recorded by the courts below, the counsel for the revision petitioner submitted that, some breathing time may be granted to pay the compensation amount. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission requires consideration in the light of the facts and circumstances involved in the case and one month time can be granted to pay the amount. 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. Accordingly, while confirming the sentence of imprisonment as modified and fixed by the appellate court and also while confirming the direction to pay compensation and the default sentence, the revision petitioner is granted one month time from 5 Crl. R.P.No.2907 of 2010 today to pay the compensation amount and it is made clear that the default sentence fixed by the appellate court will be attracted only if the revision petitioner makes any default in depositing the compensation amount within one month from today as directed by this court. Accordingly, the revision petitioner is directed to appear before the trial court on 15.11.2010, to receive the sentence of imprisonment and to pay the compensation amount, as fixed by this court. In case any failure on the part of the revision petitioner in appearing before the court below as directed above and in paying the compensation amount, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence awarded against the revision petitioner. Coercive steps if any, pending against the revision petitioner shall be deferred till 15.11.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/