IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 21ST MAY 2010 / 31ST VAISAKHA 1932 Crl.Rev.Pet.No. 1589 of 2010() ------------------------------ CRA.163/2008 of II ADDL. SESSIONS COURT, TRIVANDRUM ST.117/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT-V, TRIVANDRUM .................... REVN. PETITIONER: APPELLAN6T ------------------------------- P. BIBU, AGED 36, S/O. PONNAPPAN NADAR, PALLIKKAL, VALIYAVILA PURAM, OTTASEKHARAMANGALAM.P.O, TRIVANDRUM. BY ADV. SRI.R.S.KALKURA RESPONDENT(S): COMPLAINANT AND STATE ------------------------------------ 1. C. JOHNSON, GEETHALAYAM, KALAYIL, OTTSEKHARAMANGALAM, NEYYATINKARA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY P.P. SMT. M.K. PUSHPALATHA. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl. R.P. No. 1589 OF 2010 ---------------------------------------- Dated 21st Day of May, 2010 ORDER The accused is the revision petitioner. As per the impugned judgments, he is convicted under section 138 of the N.I.Act. In this Crl.R.P., he challenged his conviction and sentence. 2. The prosecution case is that the accused had approached the complainant and borrowed a sum of Rs.2 lakhs and towards the discharge of the said loan amount, the accused issued the cheque in question which when presented for encashment was dishonoured, consequently, a complaint was filed which received on file as S.T.No.117/2006. During the course of the trial, the complainant himself was examined as PW1 and he produced Exts.P1 to P6. No evidence is adduced from the side of the defence. After considering the materials and evidence on record, the trial court found that the accused had borrowed a sum of Rs.2,00,000/- (2 lakhs] and towards the Crl.R.P.1589/10 -:2:- discharge of the said loan, he issued the cheque in question. Thus it is found that the complainant has established his case. The same is the finding of the lower appellate court also. The trial court on the conviction of the revision petitioner under section 138 of the Act, sentenced him to undergo simple imprisonment for 6 months and to pay a compensation of Rs.2 lakhs and in default of payment of compensation, the revision petitioner is directed to undergo simple imprisonment of 15 days. The lower appellate court reduced the sentence of imprisonment to imprisonment till the rising of the court and directed the revision petitioner to pay a sum of Rs.2,05,000/- to the complainant under section 357(3) Cr.P.C and in default of payment of the compensation, he is directed to undergo simple imprisonment for 6 months. Accordingly, the lower appellate court directed the revision petitioner to appear before the court below on 25.2.2010 to receive the sentence. It is the above conviction and sentence, challenged in this Crl.R.P. 3. I have heard the learned counsel appearing for the Crl.R.P.1589/10 -:3:- revision petitioner and also perused the judgments of the courts below. 4. Going by the judgments of the trial court as well as the lower appellate court and discussions therein, it can be seen that the complainant and accused are close friends. The only contention raised by the accused is to the effect that the cheque in question was stolen by the complainant from his possession and by misusing the said cheque, the complainant preferred the present complaint. Going by the facts stated in the judgments of the courts below, it can be seen that the complainant has adduced cogent and convincing evidence to the effect that there was cordial relationship between the accused and the complainant and there was frequent transaction of money between them. By producing Ext.P1 cheque from the possession of the complainant, the complainant had further established the entire case in terms of the allegations contained in the complaint. The evidence rendered as PW1 and the documentary evidence produced by the complainant, would Crl.R.P.1589/10 -:4:- show that the complainant has positively proved the case by which he is entitled to get the presumption under section 139 of the Act. On the other hand, the allegation of the revision petitioner that the complainant had stolen the cheque leaf from the possession of the accused, was not substantiated with materials. In the absence of any evidence or satisfactory explanation as to how the cheque in question reached in the hands of the complainant, it cannot be said that the accused had discharged his burden in rebutting the presumption which is available to the complainant. Therefore, the findings of the trial court as well as the lower appellate court are absolutely legal and correct in convicting the revision petitioner accused under section 138 of the N.I.Act. 5. The learned counsel for the revision petitioner submitted that a breathing time may be granted to the revision petitioner to receive the sentence and to make the payment. I am of the view that the said prayer can be considered favourably. But at the same time, it is relevant to note that the cheque in question is pertained to the year Crl.R.P.1589/10 -:5:- 2004 and thereafter six years are over. Therefore, while retaining the sentence of imprisonment ordered by the lower appellate court, I am of the view that the amount of compensation fixed by the lower appellate can be enhanced to Rs 2,25,000/- and the default sentence can be enhanced to simple imprisonment for 9 months, which will be sufficient to meet the ends of justice. In the result, this Crl.R.P is disposed of confirming the conviction of the revision petitioner under section 138 of the NI Act as recorded by the trial court as well as the lower appellate court. Accordingly, while confirming the sentence of simple imprisonment till the rising of the court as ordered by the lower appellate court, the compensation amount enhanced to the tune of Rs.2,25,000/- which shall be paid by the revision petitioner to the complainant under section 357(3) Cr.P.C. In case of any default of payment of the said compensation amount, the revision petitioner is directed to undergo simple imprisonment for a period of 9 months. Accordingly, the revision petitioner is directed to appear before Crl.R.P.1589/10 -:6:- the trial court on 30.8.2010 to receive the sentence and to make the payment of the compensation amount as fixed above. Coercive steps, if any already taken, the same shall be kept in abeyance till 30.8.2010 In case of default on the part of the revision petitioner in appearing before the trial court as directed above, it is for the trial court to initiate coercive proceedings against the revision petitioner to procure his presence and to execute the sentence and also to realise the amount. This Crl.R.P is disposed of Accordingly. V.K.MOHANAN, JUDGE kvm/- Crl.R.P.1589/10 -:7:- V.K.MOHANAN, J. O.P.No. JUDGMENT Dated:..