IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 17TH SEPTEMBER 2010 / 26TH BHADRA 1932 Crl.Rev.Pet.No. 2757 of 2010() ------------------------------------------- CRA.27/2009 OF ADDITIONAL SESSIONS COURT (ADHOC-II), MANJERI. ST.2383/2006 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, PARAPPANANGADI. .................... REVN. PETITIONER/APPELLANT/ACCUSED --------------------------------------------------------------- C.K. MOHANADASAN, S/O.VELUKUTTY, KANDARI HOUSE, KADAKKAT PARA, THENHIPALAM-PO, TIRURANGADI TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.P.VENUGOPAL. RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE ------------------------------------------------------------------------------------- 1. MADARI ABDU RAHIMAN HAJI, S/O.MUHAMMED HAJI, NANAMBRA AMSOM, CHERUMUKKU DESOM, CHERUMUKKU P.O., TIRURANGADI, MALAPPURAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.V. TEKCHAND. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. V.K.MOHANAN, J. ------------------------------------------ Crl.R.P. No. 2757 of 2010 ---------------------------------------- Dated the 17th day of [p-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 connected with the gold ornaments purchased from the shop of the complainant and towards the discharge of the said liability therein, the accused issued a cheque dated 17.4.2006 for an amount of Rs.3,48,040/-, which when presented for encashment, dishonoured as there was no 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 Judicial First Class Magistrate-II, Parappamangadi by filing CRL.R.P.No.2757/10 -:2:- a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted S.T.No.2383/2006. During the course of trial, the complainant himself mounted to the box and adduced oral evidence as PW1. He has also produced Exts.P1 to P6 as documentary evidence. No evidence, either oral or documentary, was produced from the side of the defence. 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 undergo simple imprisonment for six months and also directed to pay a compensation of Rs.3,48,040/- to the complainant under section 357(3) Cr.P.C and the default CRL.R.P.No.2757/10 -:3:- sentence is fixed as simple imprisonment for two months. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 13.7.2010 in Crl.A.No.27/2009, the court of Addl.Sessions Judge, (Adhoc-II), Manjeri, allowed the appeal only in part, confirming the conviction of the revision petitioner and modified the sentence by reducing the imprisonment to simple imprisonment till rising of the court and instead of compensation, the revision petitioner is directed to pay a fine of Rs.3,48,040/- and it is also ordered that on realisation of the fine amount, the same shall be paid to the complainant as compensation under section 357(1)(b) of Cr.P.C. The default sentence fixed by the appellate court is two months simple imprisonment. 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 CRL.R.P.No.2757/10 -:4:- 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 to interfere with the concurrent 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 counsel submitted that a breathing time may be granted to deposit the fine amount. 5. Having regard to the facts and circumstances involved in the case, I am of the view that one month time can CRL.R.P.No.2757/10 -:5:- be granted to the revision petitioner to deposit the fine amount. 6. In the result, this Crl.R.P is disposed of confirming the conviction recorded by the courts below for the offence under section 138 of the N.I.Act. Accordingly, while maintaining the sentence of imprisonment and the sentence to pay a fine of Rs.3,48,040/-, the revision petitioner is granted one month time from today to pay fine amount and the default sentence will be attracted only if there is failure on the part of the revision petitioner in depositing the fine amount within one month from today. Accordingly, the revision petitioner is directed to appear before the trial court on 18th October , 2010 to receive the sentence and to deposit the fine amount. If there is any default on the part of the revision petitioner in appearing before the trial court as directed above, the trial court is free to take coercive steps against the revision petitioner to secure his presence and to execute the sentence and for realisation of the amount. On realisation of the fine amount, the same shall be paid to the complainant as CRL.R.P.No.2757/10 -:6:- compensation under section 357(1)(b) of Cr.P.C. Coercive step if any pending against the revision petitioner shall be deferred till 18.10.2010. This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/-