IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 11TH OCTOBER 2010 / 19TH ASWINA 1932 Crl.Rev.Pet.No. 2977 of 2010() ------------------------------ CRA.235/2009 of SESSIONS COURT, KASARAGOD ST.1044/2008 of JUDL. MAGISTRATE OF FIRST CLASS-II, HOSDRUG .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED :- ------------------------------------------------------------------ SATHEESHAN.N, AGED 31 YEARS, S/O.MOHANAN, NOONHIYIL HOUSE, P.O.MADKIKAI, NILESHWAR, HOSDURG TALUK, KASARAGOD TALUK. BY ADV. SRI.S.JIJI RESPONDENT(S)/RESPONDENTS/COMPLAINANT AND STATE :- ---------------------------------------------------------------------------------------- 1. SHAJI.C, AGED 31 YEARS, S/O.CHELLAPPAN, MANIYONODI AYITTI, TRIKARIPOOR VILLAGE, HOSDURG TALUK, PIN-671 310. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR.V.TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt V.K.MOHANAN, J. ------------------------------- Crl.R.P.No.2977 of 2010 --------------------------------- Dated this the 11th day of October, 2010 O R D E R The accused in a prosecution for an offence u/s.138 of the 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.2,00,000/- from the complainant and towards the discharge of the debt due to the complainant, he issued a cheque dated 2.6.2008 for a sum of Rs.2,00,000/-, 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 Crl.R.P.No.2977 of 2010 -: 2 :- 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-II, Hosdurg, by filing a formal complaint, upon which cognizance was taken u/s.138 of the Negotiable Instruments Act and instituted S.T.No.1044/2008. During the trial of the case, PW1 was examined from the side of the complainant and Exts.P1 to P6 were marked. No evidence 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 found that, the complainant has established the case against the accused/ revision petitioner and consequently held that the accused is guilty and thus convicted him u/s.138 of the Negotiable Instruments Act. On such conviction, the trial Crl.R.P.No.2977 of 2010 -: 3 :- court sentenced the revision petitioner to undergo imprisonment till the rising of the court and to pay a compensation of Rs.2,00,000/- to the complainant u/s.357(3) of Cr.P.C. and the default sentence is fixed as four months simple imprisonment. 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 19.8.2010 in Crl.A.No.235/2009, the Court of Sessions Judge, Kasaragod dismissed the appeal, confirming the conviction and sentence of the revision petitioner u/s.138 of the Negotiable Instruments Act. It is the above conviction and sentence are 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 Crl.R.P.No.2977 of 2010 -: 4 :- 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 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 the 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 learned counsel for the revision petitioner submitted that the revision petitioner requires one month time 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 can be considered positively and the revision petitioner can be granted one month time to pay the compensation amount. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner u/s.138 Crl.R.P.No.2977 of 2010 -: 5 :- of the Negotiable Instruments Act as recorded by the courts below. Accordingly, while confirming the sentence of imprisonment as ordered and fixed by the appellate court the revision petitioner is granted one month time to pay the compensation amount fixed by the appellate court and default sentence fixed by the appellate court also confirmed. It is made clear that the revision petitioner is free to pay the compensation amount either directly to the complainant or by remitting the same in the court below which ever subjected to the satisfaction of the learned Magistrate. It is also made clear that the default sentence fixed by the appellate court will be attracted only in case of default on the side of the revision petitioner in paying the compensation amount within one month from today. Accordingly, the revision petitioner is directed to appear before the trial court on 11th November, 2010 to receive the sentence of imprisonment as modified and fixed by the appellate court and to pay the compensation amount. In Crl.R.P.No.2977 of 2010 -: 6 :- case any failure on the part of the revision petitioner in appearing before the court below as directed above and making the payment of 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. The coercive steps if any, pending against the revision petitioner shall be deferred till 11.11.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. Jvt