IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 8TH SEPTEMBER 2010 / 17TH BHADRA 1932 Crl.Rev.Pet.No. 2602 of 2010() --------------------------------------- CRA.712/2009 of ADDL.DISTRICT & SESSIONS JUDGE (ADHOC-III), N.PARAVUR. CC.1255/2005 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA .................... PETITIONER/ACCUSED :- ----------------------------------- DR.JAYANATHAN,AGED 52, MAHESH AYURVEDA RESEARCH CENTRE, MADURAI-14. BY ADV. SRI.C.D.JOHNY SRI.P.SHAIJAN JOSEPH RESPONDENT(S)/COMPLAINANT/STATE :- ---------------------------------------------------------- 1. KERALA AYURVEDA PHARMACY LTD., PB NO.2, ATHANI , ALUVA, REP.BY ASSTT.MANAGER, SANTHOSH R. PRABHU, NOW REP.BY JAISON THOMAS. 2. STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.SUMANGALA P.N. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ----------------------------- Crl.R.P.No.2602 of 2010 --------------------------------- Dated this the 8th day of September 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 company is that, they are doing the business of manufacturing and selling of Ayurveda medicines and the accused purchased medicines from them and towards the discharge of that liability the accused issued two cheques dated 17.5.2005 and 20.5.2005 for a sum of Rs.65,000/- and 66,000/- respectively, which when presented for encashment dishonoured, as there was no sufficient fund in the account maintained by the accused and the cheques amount were not repaid inspite of a formal Crl.R.P.No.2602 of 2010 -: 2 :- demand notice and thus the revision petitioner has committed the offence punishable u/s.138 of the Negotiable Instruments Act. With the said allegation, the complainant approached the Judicial First Class Magistrate-I, Aluva, by filing a formal complaint, upon which cognizance was taken u/s.138 of the Negotiable Instruments Act and instituted C.C.No.1255/2005. During the trial of the case, from the side of the complainant, Pws.1 and 2 were examined and Exts.P1 to P13 were marked. No evidence either oral or documentary from the side of the defence. On the basis of the available materials and evidence on record, the trial court has found that the cheques in question were 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. Crl.R.P.No.2602 of 2010 -: 3 :- On such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment for one year and to pay a compensation of Rs.1,31,000/- to the complainant and the default sentence is fixed as 60 days simple imprisonment. 3. Though an appeal was filed, at the instance of the revision petitioner/accused, finally by judgment dated 15.7.2010 in Crl.A.No.712/2009, the Court of Addl. District & Sessions Judge (Adhoc-III), North Paravur, disposed of the appeal confirming the conviction of the revision petitioner u/s.138 of the Negotiable Instruments Act, but the sentence is modified and reduced to simple imprisonment for six months and payment of fine of Rs.1,35,000/- and in default of payment of fine, he is directed to undergo simple imprisonment for a period of one month. It is also ordered that the entire fine amount, if realized, shall be given to the complainant as compensation u/s.357(1)(b) of Cr.P.C. It is the above conviction and Crl.R.P.No.2602 of 2010 -: 4 :- 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. As this court is not inclined to interfere with the order of conviction recorded by the courts below against the revision petitioner u/s.138 of the Negotiable Instruments Act, the learned counsel for the revision petitioner submitted that, the sentence of imprisonment ordered by the court below is unreasonable and exorbitant and some breathing time may be granted to pay the fine amount as fixed by the lower appellate court. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered favourably. In the result, this revision petition is disposed of confirming the conviction against the revision petitioner u/s.138 of the Negotiable Instruments Act as recorded by the courts below. Accordingly, the sentence of Crl.R.P.No.2602 of 2010 -: 5 :- imprisonment ordered by the court below is reduced to one day simple imprisonment ie; till the rising of the court and while confirming the sentence of the revision petitioner to pay fine of Rs.1,35,000/- to the complainant as directed by the appellate court, the revision petitioner is granted two months time from today to pay the fine amount and the default sentence fixed by the appellate court will attract only if there is any failure in paying the fine amount within the above stipulated time. Accordingly, the revision petitioner is directed to appear before the trial court on 8th November, 2010, to receive the sentence of imprisonment and to deposit the fine amount. If there is any failure on the part of the revision petitioner to appear before the court below as directed above and to deposit the fine amount, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence of imprisonment as well as the fine. If the fine amount is realized, the same shall be given to the Crl.R.P.No.2602 of 2010 -: 6 :- complainant as compensation u/s.357(1)(b) of Cr.P.C.. The coercive steps, if any, pending against the revision petitioner shall be deferred till 8.11.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, JUDGE. Jvt