IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 4TH AUGUST 2010 / 13TH SRAVANA 1932 Crl.Rev.Pet.No. 2337 of 2010() ------------------------------ CRA.51/2006 of ADDL.SESSIONS COURT (ADHOC)III, TRIVANDRUM ST.4801/2005 of JUDL. MAGISTRATE OF FIRST CLASS-IV (MOBILE), TRIVANDRUM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- L.MOHANAN,LINE ASSISTANT,K.S.E.B, NEYYATTINKARA SUB DIVISION,(NOW WORKING AS OVERSEAR IN KSEB,EDAPPAL SECTION). BY ADV. SRI.GOPAKUMAR R.THALIYAL SRI.N.P.PRAJEESH RESPONDENT(S): COMPLAINANT AND STATE ------------------------------------ 1. T.SURESH,S/O.THANKAPPAN,RANI BHAVAN, CHITTALLOOR NORTH,MUKKOLA(P.O),KUDAPPANAKUNNU VILLAGE,THIRUVANANTHAPURAM. 2. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.VENUGOPAL.M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN,J --------------------- Crl.R.P.No.2337 of 2010 ------------------------------------ Dated this the 4th day of August,2010 O R D E R The accused in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') approached this Court by preferring the above revision petition challenging her conviction and sentence, imposed as per judgments of the trial court as well as the lower appellate court. 2. The case of the respondent/complainant against the accused/revision petitioner, towards the discharge of a debt due to the complainant, issued a cheque dated 11.4.2005 for a sum of Rs.1,00,000/- which, when presented for encashment, was dishonoured for want of sufficinet 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. With the said allegation, the complainant approached the Judicial First Class Magistrate Court-IV (mobile), Thiruvananthapuram whereupon S.T.No.4801/2005 was instituted taking Crl.R.P.No.2337 of 2010 2 cognisance for the offence under Section 138 of the N.I.Act. During the trial of the above case, the respondent/complainant adduced his evidence consisting of the documentary evidence such as Exts.P1 to P5 and the oral evidence of himself as PW1. No evidence either oral or documentary was adduced from the side of the defence. 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 courts held that, the complainant has established the case against the revision petitioner/accused and consequently, found that the accused is guilty and thus, he is convicted under Section 138 of the N.I.Act. on such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment for 3 months u/s.138 of N.I.Act and he is directed to pay Rs.1,00,000/-to the complainant as compensation u/s.357 (3) Cr.P.C. and Rs.1,000/- as costs u/s.359 Cr.P.C, failing which he is directed to will undergo simple imprisonment for one month and 10 days respectively. 3. Though an appeal was filed against the above conviction Crl.R.P.No.2337 of 2010 3 and sentence, by the revision petitioner/accused, as per judgment dated 11.5.2010 in Crl.Appeal No.51/2006, the Court of Sessions Judge, (Fast Track Court III), Thiruvananthapuram allowed the appeal only in part and thus, while confirming the conviction, the sentence of imprisonment is modified and reduced and accordingly, the revision petitioner is setenced to undergo simple imprisonment till the rising of the court and to pay compensation of Rs.1,00,000/- to the complainant under Section 357(3) of the Cr.P.C. and the default sentence is fixed as simple imprisonment for 1 month and 10 days. Accordingly, the revision petritioner is directed to appear before the trial court on 27.7.2010 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 defence during the trial as well as the appellate stage, the learned counsel for the revision petitioner submitted that the complainant has not established the transaction, execution and issuance of the Crl.R.P.No.2337 of 2010 4 cheque. The above submission is purely on the basis of the facts, evidence and materials on record which are already considered in detail by the trial court as well as the lower appellate court. The petitioner miserably failed to make out a case so as to interfere with such concurrent findings arrived on by the courts below. Therefore, the conviction recorded by the courts below is only required to be approved. I do so. 6. The learned counsel for the revision petitioner submitted that a breathing time may be granted to the revision petitioner to receive the sentence and to pay the amount ordered by the courts below. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered and one month time can be granted to the revision petitioner. 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 trial court. Accordingly, the sentence of imprisonemnt, ordered by the lower appellate court and the direction to pay the compensation and costs are also confirmed. The default sentence in case of non Crl.R.P.No.2337 of 2010 5 payment of the compensation and the costs are also confirmed. In order to appear and to pay the above amount one month time is granted to the revision petitioner. Accordingly, the revision petitioner is directed to appear before the trial court on 4.9.2010 to receive the sentence and to pay the amount. In case any failure on the part of the revision petitioner in appearing before the court below as directed above and in making the payment of fine amount, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence awarded against the revision petitioner. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, JUDGE. pm