IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 8TH OCTOBER 2010 / 16TH ASWINA 1932 Crl.Rev.Pet.No. 2952 of 2010() ------------------------------------ CRA.728/2008 of ADDL. SESSIONS COURT, (ADHOC), PALAKKAD ST.233/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT, PATTAMBI .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED ----------------------------------------------------- M.ABU, S/O. MOIDUNNY, WARD NO.8, H.NO.278, MUTTIL VEEDU, PERUMUDIYUR POST, ALIKKA PRAMBU, PATTAMBI, PALAKKAD DISTRICT. BY ADV. SRI.K.RAMESH RESPONDENT(S)/ RESPONDENT/COMPLAINANT -------------------------------------------------------- 1. STATE OF KERLA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2. DEVIKA.K., W/O JAYADEVAN, ADHIKARATHUPARAMBIL VEEDU, HIGH SCHOOL ROAD, MELE PATTAMBI, PATTAMBI, OTTAPALAM TALUK, PALAKKAD-679303. R1 BY PUBLIC PROSECUTOR SMT. P.N.SUMANGALA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs/ V.K.MOHANAN, J. - - - - - - - - - - - - - - - - - Crl. R.P. No. 2952 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8 th day of October, 2010. J U D G M E N T 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.40,000/- (Rupees Forty thousand only) from the complainant and towards the discharge of the debt, he issued a cheque dated 01.12.2005 for a sum of Rs.40,000/-, which when presented for encashment dishonoured for the reason 'fund insufficient', 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 Court of Judicial Magistrate of Ist Class, Crl. R.P. No. 2952/2010 2 Pattambi by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.233/2006. During the trial of the case complainant himself was examined as PW1 and Exts.P1 to P4 were marked. On the side of the defence, DWs 1 to 2 were examined and produced Exts.D1 to D4. 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/appellant to undergo simple imprisonment for a period of three months and also directed to pay a compensation of Rs.40,000/- to the complainant u/s.357(3) of Cr.P.C and the default sentence is fixed as one month simple imprisonment. Crl. R.P. No. 2952/2010 3 3. Aggrieved by the above order of conviction and sentence, the revision petitioner had approached the appellate court by Judgment dated 25.02.2010 in Crl.Appeal No.728/2008, the Court of Sessions, Palakkad Division, allowed the appeal only in part. Thus while confirming the conviction, the sentence of imprisonment is set aside and the sentence is confined to fine only and the revision petitioner is directed to pay a fine of Rs.41,000/- and in default of the payment of fine, he is directed to undergo simple imprisonment of one month u/s.138. It is also ordered that a sum of Rs.40,000/- out of the fine amount if recovered, shall be paid to the Ist respondent/complainant as compensation u/s.357(1) of Cr.P.C. 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 Crl. R.P. No. 2952/2010 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. 6. As this court is not inclined to interfere the order of conviction, the learned counsel for the revision petitioner submitted that some breathing time may be granted to the revision petitioner to pay the fine amount. According to me, the said submission can be considered positively but subject to slight enhancement with respect to the fine amount and three months time can be granted to pay the fine 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 maintaining the sentence to pay fine, the fine amount is enhanced and the revision petitioner is directed to deposit a sum of Rs.47,500/- (Rupees Forty seven thousand and five hundred only) being the fine amount in the trial court within three months from today and in case of any default in paying the amount within the above period, the revision petitioner is directed to Crl. R.P. No. 2952/2010 5 undergo simple imprisonment for a period of two months. Accordingly, the revision petitioner is directed to deposit a sum of Rs.47,500/- on or before 10.01.2011 and in case of any default in paying the fine amount, the trial court is free to take coercive steps to execute the sentence and to realize the fine amount. On realisation of the fine amount, a sum of Rs.45,000/-(Rupees Forty five thousand only) shall be paid to the complainant as compensation u/s.357(1)(b) of Cr.P.C. and the remaining portion will be deposited in the State Exchequer. Coercive steps if any pending against the revision petitioner shall be deferred till 10.01.2011. Criminal revision petition is disposed of accordingly. Sd/- V.K.MOHANAN, Judge. ss/. //True copy// P.A to Judge