IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 17TH AUGUST 2010 / 26TH SRAVANA 1932 Crl.Rev.Pet.No. 3830 of 2008() ------------------------------ CRA.442/2007 of ADDL.SESSIONS COURT, KOTTAYAM CC.509/2005 of JUDL. MAGISTRATE OF FIRST CLASS, ERATTUPETTA .................... REVN. PETITIONER(S): APPELLANT / ACCUSED -------------------------------------------------------------------- DR. DOMINIC THOMAS, S/O. THOMAS, NELLUVELLIL HOUSE, ERATTUPETTA VILLAGE, ERATTUPETTA.P.O. BY ADV. SRI.S.RAJEEV RESPONDENT(S): RESPONDENTS / COMPLAINANT & STATE --------------------------------------------------------------------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SONY THOMAS, S/O. THOMAS, THOTTAPPILLIL HOUSE, ARUVITHURA.P.O, ERATTUPETTA. PUBLIC PROSECUTOR MRS.PUSHPALATHA M.K SRI.BABY THOMAS FOR R2 SRI.GIGIMON ISSAC FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: dmb V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.3830 of 2008 ------------------------------- Dated this the 13th day of August, 2010. O R D E R 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, towards the discharge of a debt due to the complainant, issued a cheque dated 3.6.2005 for a sum of Rs.30,000/-, which when presented for encashment dishonoured, as there was no sufficient fund in the account maintained by the accused and the cheque amount was not repaid inspite of a formal demand notice and thus the revision petitioner has committed the offence punishable u/s.138 of Negotiable Instruments Act. With the said allegation, the complainant approached the Judicial First Class Magistrate Court, Erattupetta, by filing a formal complaint, upon which Crl. R.P.No.3830 of 2008 2 cognizance was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.509/05. During the trial of the case, PW1 the complainant himself, was examined from the side of the complainant and Exts.P1 to P9 were marked. From the side of the defence Dws.1 to 3 were examined and Exts.D1 to D8 documents were also produced. 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 to undergo simple imprisonment for 4 months and to pay a compensation of Rs.30,000/- being the cheque amount to the complainant u/s.357(3) of Cr.P.C. and it is also directed that when the compensation amount is realised the entire amount shall be paid to the complainant. The default sentence is fixed as Crl. R.P.No.3830 of 2008 3 2 months simple imprisonment. 3. Though an appeal is filed at the instance of the revision petitioner/accused, by judgment dated 2.8.2008 in Crl.A.442/07, the Court of Sessions, Kottayam Division, allowed the appeal only in part, confirming the conviction of the revision petitioner u/s.138 of Negotiable Instruments Act but the sentence of imprisonment is reduced and modified to simple imprisonment till rising of the court and sentenced the revision petitioner to pay a fine of Rs.30,000/- and it is also directed that on realisation of the fine amount, the entire amount shall be paid to the complainant as compensation u/s.357(1)(b) of Cr.P.C. but the default sentence is fixed as 1 month simple imprisonment. 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 complainant has not established the transaction and also the Crl. R.P.No.3830 of 2008 4 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. Therefore, I find no merit in the revision petition and accordingly the conviction recorded by the courts below against the revision petitioner u/s.138 of Negotiable Instruments Act, is approved. 6. As this court is not inclined to interfere with the order of conviction, the learned counsel for the revision petitioner submitted that the revision petitioner is a Doctor by profession and therefore the sentence of imprisonment ordered against him may be set aside and dispose of the revision petition confirming the sentence of fine imposed by the lower appellate court. The learned counsel for the contesting respondent submitted that, he has no objection in disposing the revision petition in the manner suggested by the learned counsel for the revision petitioner and his only submission is that the complainant may be permitted to withdraw the amount ordered by the lower appellate court. 7. Having regard to the facts and circumstances involved in the case, especially in the light of the submission made by the Crl. R.P.No.3830 of 2008 5 learned counsels for the revision petitioner as well as the contesting parties, I am of the view that this revision petition can be disposed of setting aside the sentence of imprisonment and confirming the sentence of fine, fixed by the lower appellate court and also with a direction to release the fine amount in favour of the complainant/2nd respondent u/s.357(1)(b) of Cr.P.C. 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 and setting aside the sentence of imprisonment ordered by the lower appellate court against the revision petitioner and also sentencing the revision petitioner to pay a fine of Rs.30,000/- and in case of default in paying the fine amount, the revision petitioner is directed to undergo simple imprisonment for a period of 2 months. The learned counsel for the revision petitioner submitted that, in terms of an order dated 16.12.2008 issued by this court in Crl.M.A.No.11757/08, which was extended by an order dated 28.1.2009 in Crl.M.A.No.581/09, a sum of Rs.30,000/- being the Crl. R.P.No.3830 of 2008 6 fine amount, has already been deposited in the trial court and the said payment can be treated as compliance of the sentence to pay the fine amount and the said amount can be ordered to be released in favour of the complainant as compensation u/s.357(1) (b) of Cr.P.C. Therefore, there will be a direction to the court below to treat the deposit of the fine amount, in terms of the order dated 16.12.2008 in Crl.M.A.No.11757/08 of this court, as the compliance of the payment of the fine amount and the said amount can be released in favour of the complainant/2nd respondent in terms of Section 357(1)(b) of Cr.P.C. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/