IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 24TH SEPTEMBER 2010 / 2ND ASWINA 1932 Crl.Rev.Pet.No. 1517 of 2008() ------------------------------ CRA.708/2007 of SESSIONS COURT, ALAPPUZHA CC.463/2005 OF JUDL.MAGISTRATE OF FIRST CLASS COURT -I, ALAPPUZHA .................... REVN. PETITIONER/APPELLANT/ACCUSED ------------------------------------------------- K.C.SHAJI,S/O.CHACKO, AGED 41 YEARS,POLICE CONSTABLE, P.C.NO.7882,ADIMALI POLICE STATION, ADIMALI P.O.,IDUKKI. BY ADV. SRI.BINOY VASUDEVAN RESPONDENTS: RESPONDENTS/COMPLAINANT AND STATE ------------------------------------------------------------ 1. SARARAJ N.S.,S/O.SASIDHARAN, CHANNAPARAMBIL VEEDU, THUMPOLY P.O.,ALAPPUZHA. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.ABDUL JALEEL.A & ADV. SRI.K.P.MADHU R2 BY PUBLIC PROSECUTOR SRI. V. TEK CHAD. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ----------------------------------------- Crl. R.P.No.1517 of 2008 ---------------------------------------- Dated this the 24th day of September, 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 borrowed a sum of Rs.75,000/- from the complainant and towards the discharge of the debt due to the complainant, the accused issued a cheque dated 23.2.2005 for a sum of Rs.75,000/-, 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 in spite 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 court of Judl. First Class Magistrate Court-I, Alappuzha, by filing a formal complaint, upon which cognizance was taken under Section 138 of the Negotiable Instruments Act and instituted C.C.No.463/2005. During the trial of the case, the CRRP 1517/08 :-2-: complainant himself was mounted to the box and gave evidence as PW1 and Exts.P1 to P6 were marked, from the side of the complainant. No evidence either oral or documentary 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 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 imprisonment till the rising of the court and the revision petitioner is directed to pay compensation of Rs.75,000/- to the complainant, in default, he is directed to undergo simple imprisonment for a period of three months. 3. Challenging the conviction and sentence, the revision petitioner filed an appeal, Crl.A.No.708/2007, the said appeal was a belated one and there was a delay of 120 days CRRP 1517/08 :-3-: in preferring the appeal. However, by order dated 23.12.2007, the learned Sessions Judge in Crl.M.A.No.3808/2007 condoned the above delay on condition that the petitioner pays a cost of Rs.2000/. But the revision petitioner, the appellant therein, failed to deposit the above amount and consequently the petition to condone the delay was dismissed and the appeal was also dismissed. It is the above order of the appellate court and the judgment of trial court are challenged in this Crl.R.P. 4. I have heard the learned counsel for the revision petitioner as well as the counsel for the Ist respondent and also perused the judgments of the courts below. 5. It is true that the appeal was dismissed without going into the merits of the appeal. As I indicated earlier, the cheque in question, i.e. Ext.P1 is dated 23.2.2005, that too for an amount of Rs.75,000/. The trial court, after elaborate consideration of the entire matter, evidence and materials, has found that the revision petitioner has issued the cheque in question towards the discharge of the liability due to the complainant. In order to come into such a conclusion, the CRRP 1517/08 :-4-: complainant has adduced evidence and thereby the trial court has found that the accused has issued the cheque in discharge of the debt due to the complainant. In paragraph 8 of the trial court judgment, the learned Magistrate considered the defence taken by the accused/revision petitioner. It is pertinent to note that though the accused/revision petitioner has received statutory notice as evidenced by Ext.P4 to P6, no reply is seen issued to the above notice and he miserably failed to avail the first and the best opportunity to set forth his defence. During the trial, when the accused was questioned under section 313 Cr.P.C., he had filed a statement stating that he has no connection with the complainant and did not issue any cheque to the complainant. According to him, the cheque in question was issued to one Shaji who is having acquaintance with the accused as co-passenger in the train. It is also the case of the revision petitioner that the amount due to the said Shaji was repaid but he did not return the cheque. Though the said defence was taken at a belated stage, no evidence was adduced to substantiate the above said version of the CRRP 1517/08 :-5-: defence. Therefore, the trial court correctly discarded the so called defence. 6. Having regard to the above facts and circumstances, the question to be considered is that even if the matter is remitted back to the appellate court for a consideration on merit, whether there will be any fruitful turnout in favour of the revision petitioner. Under the above circumstance, the learned counsel for the revision petitioner submitted that the revision petitioner may be granted reasonable time to pay the amount fixed by the trial court. In this juncture it is also relevant to note that the appeal was dismissed since the revision petitioner could not pay even a sum of Rs.2000/-, the cost fixed by the appellate court, to condone the delay. Therefore, if the matter is remitted back, resultantly, the revision petitioner has to bear the expense to prosecute the appeal. The cheque in question is dated 23.2.2005. Under the above factual background of the case, I am of the view that no purpose will be served by remanding the matter to the appellate court and it will be more feasible if it is disposed of granting some time to the revision petitioner to CRRP 1517/08 :-6-: pay the amount fixed by the trial court. In the result, this Crl.R.P. is disposed of confirming the conviction of the revision petitioner for the offence under section 138 of the N.I.Act and the sentence of imprisonment and order to pay compensation to the complainant. However, it is made clear that the default sentence fixed by the trial court will be attracted only in case of any failure on the part of the revision petitioner in paying a sum of Rs.75,000/- within two months from today. Accordingly, the revision petitioner is directed to appear before the trial court on 24.11.2010 to receive the sentence and to pay the compensation amount. It is also made clear that the revision petitioner is free to pay the compensation amount either directly to the complainant or by remitting the same in the court below, whichever subject to the satisfaction of the trial court. In case any failure on the part of the revision petitioner in appearing before the court below as directed above and in paying the compensation 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 CRRP 1517/08 :-7-: revision petitioner. Coercive steps if any pending against the revision petitioner shall be kept in abeyance till 24.11.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. kvm/-