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. 2872 of 2010() -------------------------------------------- CRA.678/2009 of ADDL.SESSIONS COURT, (ADHOC - I), ERNAKULAM ST.5967/2003 of JUDL.MAGISTRATE OF FIRST CLASS-II, ERNAKULAM .................... REVN. PETITIONER(S):APPELLANT/ACCUSED. ---------------------------------------------------------------------------------- C.M.KABEER, AGED 54 YEARS, S/O.MUTHYUDHEEN, M/S.RELIABLE MARKETING KAVYA, NEAR OLYMPIA STEELS, THRIKKAKARA P.O., VAZHAKALA. KOCHI. BY ADV. SRI.MANSOOR.B.H. RESPONDENT(S): STATE & COMPLAINANT. --------------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. M/S.SUPER AGENCIES, DOOR.NO.XL/7147, 1ST FLOOR,T.D.ROAD, ERNAKULAM, REPRESENTED BY ITS MANAGING PARTNER,POLY VARGHESE, AGED 59 YEARS, S/O.P.J.VARGHESE, 34/692, A1.PARAMBATHARA, KARUVELI ROAD, MAMANGALAM, KOCHI.682 024. R1 BY PUBLIC PROSECUTOR SMT.P.N.SUMANGALA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss V.K.MOHANAN, J. - - - - - - - - - - - - - - - - - Crl. R.P. No. 2872 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 purchased goods from the complainant and towards the discharge of the debt, he issued a cheque dated 05.08.2002 for a sum of Rs.83,390/- (Rupees Eighty three thousand three hundred and ninety only), which when presented for encashment was dishonoured for want of sufficient fund in the account maintained by the revision petitioner and the petitioner failed to pay the cheque amount even though he was requested for the same by issuing a statutory notice and thus the revision petitioner has committed the offence Crl. R.P. No. 2872/2010 2 punishable u/s.138 of Negotiable Instruments Act. With the said allegation, the complainant approached the Court of Judicial Ist Class Magistrate-II, Ernakulam by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.5967/2003. During the trial of the case, complainant himself was examined as PW1 and Exts.P1 to P9 were marked. No evidence adduced from the side of the defence, either documentary or oral. 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/accused to undergo simple imprisonment for a period of one month and also directed to pay a fine of Rs.1,30,000/- and the default Crl. R.P. No. 2872/2010 3 sentence is fixed as three months simple imprisonment. It is also ordered that on realization of the fine amount, the same shall be paid to the complainant. 3. Aggrieved by the above order of conviction and sentence, the revision petitioner had approached the appellate court. By Judgment dated 28.05.2010 in Crl.Appeal No.678/2009, the Court of The Addl. Sessions Judge (Adhoc-I), Ernakulam, dismissed the appeal, confirming the conviction and modified the sentence of imprisonment, reducing the same to till the rising of the court and the fine amount is reduced to Rs.90,000/-. It is also ordered by the appellate court, the revision petitioner shall appear before the trial court on 30.09.2010 to receive the sentence. 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 Crl. R.P. No. 2872/2010 4 complainant has not established the transaction and also 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 with 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. Therefore, I am of the view that the said submission can be considered favourably but subject to slight enhancement with respect to 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 of imprisonment ordered by lower appellate court as modified and fixed by the appellate court, the fine amount is enhanced to Rs.1,17,750/-. Accordingly, the revision petitioner is directed to deposit a sum of Rs.1,17,750/- (Rupees One lakh seventeen thousand seven hundred and Crl. R.P. No. 2872/2010 5 fifty only) 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 undergo simple imprisonment for a period of four months. Accordingly, the revision petitioner is directed to appear before the trial court on 10.01.2011 to receive the modified sentence and to deposit the fine amount. If there is 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. A sum of Rs.1,14,000/-(Rupees One lakh fourteen thousand only) shall be paid to the complainant as compensation u/s.357(1)(b) of Cr.P.C and the remaining amount 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