IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 11TH AUGUST 2010 / 20TH SRAVANA 1932 Crl.Rev.Pet.No. 2370 of 2010() ------------------------------------------- CRA.401/2007 of II ADDL. SESSIONS COURT, TRIVANDRUM ST.397/2006 of JUDICIAL FIRST CLASS MAGISTRATE COURT-VI, THIRUVANANTHAPURAM. .................... RPETITIONER/APPELLANT/ACCUSED. --------------------------------------------------------- ANILKUMAR, CHIEF EXECUTIVE OFFICER, SOORYA HERBAL EXPORTS, SREEVARAHAM, MANACAUD, THIRUVANANTHAPURAM. BY ADV. SRI.A.AHZAR RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE. ------------------------------------------------------------------------------------- 1. A. SALIM, S/O.HASSAN BAVA, T.C.19/1284, MAKKOTTU KUZHI VEEDU, KUNCHALUMMOODU, KARAMANA, THIRUVANANTHAPURAM-695 001. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.C.M. NAZAR. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/08/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. V.K.MOHANAN, J. ---------------------------------------- Crl.R.P. No. 2370 2010 ---------------------------------------- Dated the 11th Day of August, 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.1,50,000/- from the complainant and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 20.9.2004 which when presented for encashment, dishonoured for the reason that the account was closed 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 initially approached the Addl. Chief Judicial Magistrate, Thiruvananthapuram wherein the complaint was taken on file as S.T.No.423/2004 for the Crl.R.P.No.2370/10 -:2:- offence under section 138 of the N.I.Act. Subsequently, the case was made over to the Judicial First Class Magistrate court-VI, Thiruvananthapruam wherein the case was renumbered as STC No.397/2006. 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. 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 undergo simple imprisonment for a period of 6 months and to pay a sum of Rs.1.50,000/- to the Crl.R.P.No.2370/10 -:3:- complainant as compensation under section 357(3) Cr.P.C. the default sentence is fixed as one month simple imprisonment. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 31.10.2009 in Crl.A.No. 401/2007, the court of Addl. Sessions Judge-II, Thiruvananthapuram, allowed the appeal only in part confirming the conviction of the revision petitioner but the sentence of imprisonment is reduced to till the rising of the court. The revision petitioner is also directed to pay a compensation of Rs.1,55,000/- to the complainant under section 357(3) of Cr.P.C. The default sentence is fixed as six months simple imprisonment. Accordingly, the lower appellate court directed the revision petitioner to appear before the trial court 14.12.2009 to serve the modified sentence. 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.2370/10 -: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 by interfering 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 I am not inclined to interfere with the findings of the courts below, 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 fine amount. Crl.R.P.No.2370/10 -:5:- 5. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered favourably, but subject to other facts and circumstances. 6. The cheque in question is dated 20.9.2004 for an amount of Rs.1,50,000/- and thus as per the record and finding of the courts below, which upheld by this court, a sum of Rs.1,50,000/- is with the revision petitioner for the last 6 years. Considering the legal position as per the decision of the Apex Court in Damodar S.Prabhu v. Sayed Babalal H (J.T.2010 (4) SC 457), while granting some time to revision petitioner, the amount of compensation can be enhanced slightly. In the result, this Crl.R.P is disposed of confirming the conviction recorded by the trial courts below for the offence under section 138 of the N.I.Act . Thus while maintaining the sentence of imprisonment as ordered by the lower appellate court, the revision petitioner is directed to pay a compensation of Rs.1,75,000/- to the complainant under Crl.R.P.No.2370/10 -:6:- section 357(3) of Cr.P.C. within three months from today , in default, he is directed to undergo simple imprisonment for 3 months. Accordingly, the revision petitioner is directed to appear before the trial court on 11th November, 2010 to receive the sentence and to pay the compensation 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 . Warrant if any pending against the revision petitioner shall be kept in abeyance till 11.11.2010. This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- Crl.R.P.No.2370/10 -:7:- O.P.No. JUDGMENT Dated:..