IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 4TH OCTOBER 2010 / 12TH ASWINA 1932 Crl.Rev.Pet.No. 1762 of 2010(A) ------------------------------ CRA.276/2009 of III ADDL.SESSIONS COURT, KOLLAM STC.47/2008 of THE COURT OF JUDL FIRST CLASS MAGISTRATE, KOLLAM .................... REVN. PETITIONER: APPELLANT/ACCUSED -------------------------------------- ABDUL AZEEZ, FAMEENA MANZIL, KILIKOLLOOR, KOLLAM. BY ADV. SRI.S.SANTHOSH KUMAR SMT.P.LISSY JOSE. RESPONDENTS: COMPLAINANT & STATE ---------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SHAHUL HAMEED, NISHAD MANZIL, DECENT JUNCTION P.O., KOLLAM. R1 BY P.P. SMT. SUMANGALA P.N. R2 BY ADV. M/S.R.KISHORE & SRI.G.HARIPRASAD. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------------------ Crl.R.P. No. 1762 of 2010 ---------------------------------------- Dated the 4th Day of October, 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.5,00,000/- from the complainant and towards the discharge of the said liability, the accused issued a cheque dated 11.12.2006 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-I, Kollam by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted C.C.No. CRL.R.P 1762/10 -:2:- No.381/2007 which was subsequently made over to the Judicial First Class Magistrate Court-IV, Kollam, wherein the case was renumbered as S.T.No.47/2008. 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 P7 as documentary evidence. From the side of the defence, DWs 1 and 2 were examined and marked Ext.D1. 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 three months and to pay a fine of Rs.5,00,000/- .The default sentence is fixed as simple CRL.R.P 1762/10 -:3:- imprisonment for a period of three months. It is also ordered that on realisation of the fine amount, the same shall be paid to the complainant under section 357(1)(b) of Cr.P.C. 3. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 27.3.2010 in Crl.A.No.276/2009, the court of III Addl. Sessions Judge, Kollam, dismissed the appeal confirming the conviction, but the sentence is modified reducing the substantive sentence of imprisonment to imprisonment till the rising of the court and to pay a fine of Rs.5,00,000/- and the default sentence fixed as three 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. 4. Heard the learned counsel for the revision petitioner and the counsel appearing for the 2nd respondent. 5. Reiterating the contention taken by the defence CRL.R.P 1762/10 -:4:- during the trial and appellate stages, the learned counsel submitted that the complainant has not established the 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. 6. Now the learned counsel for the revision petitioner submitted that the revision petitioner seeks two weeks time to deposit the fine amount. the learned CRL.R.P 1762/10 -:5:- counsel for the 2nd respondent has no objection in granting the time sought by the counsel for the revision petition. 7. In the present case, when the above Crl.R.P. came up for admission, this Court by order dated 11.6.2010 in Crl.M.A.No.5545/10 suspended the execution of the sentence on condition of depositing Rs.2,00,00/- (Rs.Two lakhs only), out of the fine amount within one month from the date of execution of the bond, but the said order was not complied with. 8. Having regard to the facts and circumstances involved in the case, I am of the view that the said prayer can be allowed. In the result, this Crl.R.P is disposed of confirming the conviction, the sentence of imprisonment as modified by the appellate court and also the sentence of fine. The revision petitioner is granted two week's time to deposit the fine amount. The default sentence fixed by the appellate court will be attracted only if the petitioner fails to deposit the fine amount within the CRL.R.P 1762/10 -:6:- extended period. Subject to the above modification with respect to the time to pay the fine amount, this Crl.R.P is dismissed. V.K.MOHANAN, kvm/- JUDGE kvm/-