IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 22ND SEPTEMBER 2010 / 31ST BHADRA 1932 Crl.Rev.Pet.No. 2775 of 2010() ---------------------------------------- -- CRA.630/2009 of ADDL. DISTRICT & SESSIONS COURT (ADHOC – III) ST.47/2009 of JUDICIAL MAGISTRATE OF FIRAST CLASS - II, PARAVUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ----------------------------------------------------------------- P.K.JAYAN,AGED 43 YEARS, S/O.RAMAKRISHNAN NAIR,PLAKKATTU HOUSE, NEERICODE PO,ALANGAD VILLAGE,PARAVUR TALUK. BY ADV. SRI.S.RAJEEV RESPONDENT(S): COMPLAINANTS & STATE ----------------------------------------------------------- --- 1. P.K.BABU,PARAYATTU HOUSE, PATTANAM KARA, VADAKKEKARA PO,PARAVUR TALUK 683513. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI.V.TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss V.K.MOHANAN, J. ------------------------------------------ Crl.R.P. No. 2775 OF 2010 ---------------------------------------- Dated the 22ND Day of September, 2010 ORDER The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the revision petitioner as he is aggrieved by the conviction and sentence imposed against him as per the impugned judgment. 2. The case of the complainant is that the accused borrowed an amount of Rs.1,00,000/- from the complainant and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 2.9.2004 which when presented for encashment, dishonoured as there was no sufficient fund in the account maintained by the accused and the revision petitioner/accused miserably failed to repay the cheque amount in spite of a formal notice caused to issue by him. With the said allegation, the complainant approached the Judicial First Class Magistrate-II, North Paravur by filing a formal complaint upon which cognizance Crl.R.P. No.2775/10 -:2:- was taken under Section 138 of the N.I.Act and instituted S.T.No.47/2009. (originally filed as S.T.No.4896/2004). During the course of trial, from the side of the complainant, PWs 1 and 2 were examined and Exts.P1 to P8 were marked as documentary evidence. From the side of the defence, no evidence was produced. After evaluation of the evidence and the materials on record, the trial court has found that Ext.P1 cheque was issued towards the discharge of a legally enforceable debt that due to the complainant and accordingly, the trial court held that the complainant has succeeded in establishing the allegation against the revision petitioner-accused and found that the revision petitioner- accused is guilty. Consequently, the accused is convicted under section 138 of the N.I.Act. On such conviction, the trial court sentenced the revision petitioner-accused to undergo simple imprisonment for six months and to pay a fine of Rs.1,00,000/-, in default, he is directed to undergo simple imprisonment for a further period of six months. It is also ordered that on realisation of the fine amount, the same Crl.R.P. No.2775/10 -:3:- shall be paid as compensation to the complainant under section 357(1) Cr.P.C. Aggrieved by the above order of conviction and sentence, though the revision petitioner- accused preferred an appeal, by judgment dated 21.7.2010, in Crl.A.No.630/2009, the court of Addl. District & Sessions Judge, (Adhoc-III), North Paravur allowed the appeal only in part and thus while confirming the conviction , the sentence is modified and reduced to simple imprisonment for three months and to pay fine of Rs. one lakh and the default sentence is fixed as three months simple imprisonment. It is also ordered that the entire fine amount shall be given to the complainant as compensation. It is the above judgments of the trial court as well as the lower appellate court challenged in this Crl.R.P. 3. Reiterating the contention taken by the defence during the trial and appellate stages, the learned counsel submitted that the complainant has not established the transaction, execution and issuance of the cheque and therefore, the courts below are absolutely wrong in Crl.R.P. No.2775/10 -:4:- convicting the revision petitioner-accused imposing sentence against him. The trial court as well as the lower appellate court has concurrently found in favour of the complainant and against the revision petitioner-accused. Though the revision petitioner is heard elaborately, nothing is brought out to take a different view by interfering with the concurrent findings of the courts below. All the contentions are based upon the facts and evidence on record which were elaborately considered by the courts below. Therefore, I find no reason to interfere with such concurrent finding of the courts below and accordingly, the conviction recorded by the courts below is confirmed. 4. As this Court is not inclined to interfere with the order of conviction, the learned counsel for the revision petitioner submitted that a breathing time may be granted to the revision petitioner to deposit the fine and the sentence of imprisonment may be set aside. 5. Having regard to the facts and circumstances involved in the case, I am of the view that while granting Crl.R.P. No.2775/10 -:5:- some time to the revision petitioner, the order to pay fine can be converted to compensation and the amount can be enhanced slightly. The sentence of imprisonment can also be modified. In the result, this Crl.R.P is disposed of confirming the conviction recorded by the courts below for the offence under section 138 of the N.I.Act. Accordingly, the sentence of imprisonment ordered against the revision petitioner is modified and reduced to one day simple imprisonment, i.e., till the rising of the court. Whereas the direction to pay fine of Rs.1,00,000/- is set aside and the revision petitioner is directed to pay a sum of Rs.1,18,000/- to the complainant as compensation under section 357(3) Cr.P.C. within two months from today and in case of any default in paying the compensation within the stipulated time, the revision petitioner is directed to undergo simple imprisonment of a period of 3 months from today. Accordingly, the revision petitioner is directed to appear before the trial court on 22nd November, 2010 to receive the Crl.R.P. No.2775/10 -:6:- sentence and to pay compensation amount. If there is any default on the part of the revision petitioner in appearing before the trial court as directed above, the trial court is free to take coercive steps against the revision petitioner to secure his presence and to execute the sentence and for realisation of the amount. Coercive steps if any pending against the revision petitioner shall be deferred till 22.11.2010 This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- Crl.R.P. No.2775/10 -:7:-