IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 16TH SEPTEMBER 2010 / 25TH BHADRA 1932 Crl.Rev.Pet.No. 2731 of 2010 ---------------------------------------- [CRL.A.NO.25/2009 OF ADDL. SESSIONS COURT, (ADHOC -I), PALAKKAD, ST.NO.413/2008 OF JUDL.MAGISTRATE OF FIRST CLASS COURT-III, PALAKKAD] .................... PETITIONER/APPELLANT/ACCUSED: ----------------------------------------------------- SOMASUNDARAM, S/O. KANNAN, RLY. QUARTERS NO.577 E, OLD COLONY, HELPER GRADE I, O.S.SIGNAL PROJECT STORE, SOUTHERN RAILWAY, OLAVAKKODE, PALAKKAD. BY ADV. SRI.P.K.MOHANAN(PALAKKAD). RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE: ---------------------------------------------------------------------------------------- 1. K.RAMACHANDRAN, S/O. KALI, LEKHA NIVAS, THOMAS NAGAR, KAKKANNI, KALLEKULANGARA, PALAKKAD, PIN-678 009. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. V. TEK CHAND. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. V.K.MOHANAN, J. ------------------------------------------ Crl.R.P. No. 2731 of 2010 ---------------------------------------- Dated the 16th Day September 2010 ORDER The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the revision petitioner as he is aggrieved by the conviction and sentence imposed against him as per the impugned judgment. 2. The case of the complainant is that the accused borrowed an amount of Rs.50,000/- from the complainant and towards the discharge of the said debt, the accused issued a cheque dated 7.12.2007 for an amount of Rs.50,000/- which when presented for encashment, dishonoured for want of sufficient fund in the account maintained by the accused and the revision petitioner/accused miserably failed to repay the cheque amount in spite of a formal notice caused to issue by him. With the said allegation, the complainant approached the Court of Judicial First Class Magistrate-III, Palakkad, by filing CRL.R.P.2731./10 -:2:- a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted S.T.C.No.413/2008. During the course of trial, from the side of the complainant, the complainant himself was examined as PW1 and produced Exts.P1 to P3 as documentary evidence. From the side of the defence, no evidence either oral or documentary was produced. After evaluation of the evidence and the materials on record, the trial court has found that Ext.P1 cheque was issued towards the discharge of a legally enforceable debt that due to the complainant and accordingly, the trial court held that the complainant has succeeded in establishing the allegation against the revision petitioner-accused and found that the revision petitioner-accused is guilty. Consequently, the accused is convicted under section 138 of the N.I.Act. On such conviction, the trial court sentenced the revision petitioner-accused to pay a fine of Rs.50,000/- and in default he is directed to undergo simple imprisonment for a period of one month. It is also directed that if the fine amount is realised, the same shall be given to the complainant as CRL.R.P.2731./10 -:3:- compensation under section 357(1) (b) of Cr.P.C. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 26.5.2010 in Crl.A.No.25/2009, the court of Addl. Sessions Judge (Adhoc court No.1) Palakkad, dismissed the appeal confirming the conviction and sentence. It is the above judgments of the trial court as well as the lower appellate court challenged in this Crl.R.P. 3. Reiterating the contention taken by the defence during the trial and appellate stages, the learned counsel submitted that the complainant has not established the transaction, execution and issuance of the cheque and therefore, the courts below are absolutely wrong in convicting the revision petitioner-accused imposing sentence against him. The trial court as well as the lower appellate court has concurrently found in favour of the complainant and against the revision petitioner-accused. Though the revision petitioner is heard elaborately, nothing is brought out to take a different view by interfering with the concurrent CRL.R.P.2731./10 -:4:- findings of the courts below. All the contentions are based upon the facts and evidence on record which were elaborately considered by the courts below. Therefore, I find no reason to interfere with such concurrent finding of the courts below and accordingly, the conviction recorded by the courts below is confirmed. 4. As this court is not inclined to interfere with the order of conviction, the learned counsel for the revision petitioner submitted that a breathing time may be granted to the revision petitioner to pay the fine amount. According me, the said submission can be considered favourably, but subject to slight enhancement of the fine amount . In the result, this Crl.R.P is disposed of and while confirming the sentence of fine ordered by the courts below, the fine amount is enhanced to to the tune of Rs.60,000/- (Rs.sixty thousand only) which shall be paid within three months from today. In case of any default in paying the fine amount, the revision petitioner is directed to undergo simple imprisonment for a period of 45 days. Accordingly, the CRL.R.P.2731./10 -:5:- revision petitioner is directed to deposit the fine amount on or before 17th December, 2010. If there is any default on the part of the revision petitioner in depositing the fine amount as directed above, the trial court is free to take coercive steps against the revision petitioner to execute the sentence and for realisation of the fine amount. On realisation of the fine amount, a sum of Rs.57,500/- (Rs.Fifty seven thousand and five hundred only) shall be paid to the complainant as compensation under section 357(1)(b) of Cr.P.C and the remaining amount shall be deposited into the State Ex chequer. Coercive steps if any pending against the revision petitioner shall be deferred till 17.12.2010. This Crl.R.P is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- CRL.R.P.2731./10 -:6:- kvm/-