IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 7TH JANUARY 2011 / 17TH POUSHA 1932 Crl.Rev.Pet.No. 50 of 2011() --------------------------------- CRA.638/2004 of ADDL. SESSIONS COURT (FAST TRACK COURT-III), THIRUVANANTHAPURAM ST.159/2002 of CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... PETITIONER(S): APPELLANT/ACCUSED --------------------------------------------- ANJALI DEVI, LALITHA NIVAS, ARAPPURA LANE, KANNANMOOLA, MEDICAL COLLEGE PO, THIRUVANANTHAPURAM. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE -------------------------------------------------------------------- 1. V.SREEKANTAN NAIR, APSARA, T.C.NO.2/1335, MANGANOORKONAM, P.O.WEST PATTOM, THIRUVANANTHAPURAM - 695 002. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, ERNAKULAM - 682 031. R2 BY PUBLIC PROSECUTOR SMT.REKHA C. NAYAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs V.K.MOHANAN, J. ------------------------------- Crl.R.P.No.50 of 2011 ------------------------------- Dated this the 7th day of January, 2011. 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 her conviction and sentence, imposed as per judgments of the trial court as well as the lower appellate court. 2. The case of the complainant is that, towards the repayment of the amount due to the complainant, the accused issued a cheque dated 15.10.2001 for an amount of Rs.75,000/-, which when presented for encashment dishonoured for want of sufficient funds 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 Chief Judl. Magistrate Court-Thiruvananthapuram, by filing a formal 2 Crl.R.P.No.50 of 2011 complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.159/02. During the course of the trial PW1 was examined from the side of the complainant and Exts.P1 to P4 were produced and marked. From the side of the defence, the accused herself was mounted to the box and gave evidence as Dws.1 and 2 and produced Exts.D1 to D7 documents. 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 her 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 her u/s.138 of Negotiable Instruments Act. On conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment for 1 year and to pay fine of Rs.80,000/- and the default sentence is fixed as 2 months simple imprisonment. 3 Crl.R.P.No.50 of 2011 3. Challenging the above conviction and sentence the accused preferred an appeal and by judgment dated 25.9.2010 in Crl.A.638/04 the court of the Additional Sessions Judge (Fast Track Court III), Thiruvananthapuram, allowed the appeal only in part. Accordingly, the appellate court sentenced the revision petitioner to undergo simple imprisonment till rising of the court and also directed to pay compensation of Rs.75,000/- to the complainant u/s.357(3) of Cr.P.C. and in default to undergo simple imprisonment for 3 months. It is the above conviction and sentence challenged in this revision petition. 4. The learned counsel for the revision petitioner vehemently submitted that the accused has no transaction with the complainant and no liability was due to the complainant so as to issue the cheque in question. According to the learned counsel, the complainant has stayed with the accused for a couple of days and during that period, he fraudulently removed the cheque and misused the same for filing the complaint. In support of the above submission, the learned counsel pointed 4 Crl.R.P.No.50 of 2011 out that, the seal contained in Ext.P1 is not that contained in the firm's account and the same is entirely different from the seal that contained in Exts.D1 and D3. I find no fault in the above conviction, especially when there is no dispute with respect to the signature that contained in the cheque in question and the cheque was dishonoured for the reason that there was no sufficient fund in the account to honour the cheque in question. Though the accused took a contention that, the cheque in question was one among several cheques taken by the complainant, when there was cordial relationship between the complainant and the accused, the same has not established by supporting evidence. The above contentions are based upon facts, which were properly dealt with by both the trial court as well as the appellate court and therefore no scope for this Court to interfere with these factual findings, while exercising the revisional jurisdiction of this Court. So, I find no reason to interfere with the concurrent findings of the courts below. 5. As this court is not inclined to interfere with the order of 5 Crl.R.P.No.50 of 2011 conviction and sentence, the learned counsel for the revision petitioner submitted that a breathing time may be granted to pay the compensation amount and I find no reason to reject the above request. 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, while confirming the sentence to undergo simple imprisonment, as modified and fixed by the appellate court, and also the direction to pay compensation and the default sentence, the revision petitioner is granted 45 days time from today to pay the compensation amount. It is also made clear that the default sentence fixed by the court below will be attracted only in case of any default on the part of the revision petitioner to appear before the trial court to receive the sentence and to pay the compensation. Accordingly, the revision petitioner is directed to appear before the trial on or before 21.2.2011. If there is any failure on the part of the revision petitioner in appearing before 6 Crl.R.P.No.50 of 2011 the trial court on or before 21.2.2011 to receive the sentence and to pay 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. Coercive steps, if any, pending against the petitioner shall be deferred till 21.2.2011 Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/