IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 13TH SEPTEMBER 2010 / 22ND BHADRA 1932 Crl.Rev.Pet.No. 2702 of 2010() ------------------------------------ (CRA.891/2006 of ADDL.SESSIONS COURT (ADHOC)III, TRIVANDRUM ST.238/2006 of JUDICIAL FIRST CLASS MAGISTRATE COURT - X, THIRUVANANTHAPURAM.) .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: ------------------------------------------------------ J.LALITHAKUMARI, SELECTION GRADE AUDITOR, OFFICE OF THE DEPUTY DIRECTOR, LOCAL FUND AUDIT, PALAYAM. BY ADVS. SRI.R.V.SREEJITH SMT.RAKHI RAVIKUMAR RESPONDENT(S): COMPLAINANT & STATE: -------------------------------------------------- 1. SETHUMADHAVAN PISHARADY, TC 26/1802(1), CRN PISHARADY LANE, STATUE, THIRUVANANTHAPURAM. 2. STATE, REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTORSMT. P.N. SUMANGALA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SVS/ V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2702 of 2010 ------------------------------------------------------ Dated this the 13th 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 she 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 06.10.2004 for a sum of Rs.1,00,000/-,(Rupees One lakh only) 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 same allegation, the complainant approached the Judicial First Class Magistrate Court, Thiruvananthapuram, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Crl. R.P.No.2702/2010 2 Instruments Act and instituted S.T.No.95/05, after the appearance of the accused and recording the plea, the case was transferred to the Judl. Ist Class Magistrate Court-X, Thiruvananthapuram, wherein the case is renumbered as S.T.No.238/2006. During the trial of the case, the complainant herself was examined as PW1 and Exts.P1 to P5 were marked. From the side of the defense DWs 1 and 2 were examined and marked as Ext.B1. It is also seen that Exts.X1 to X3 were marked as witness exhibits. 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 her 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 a period of 6 months and she is also directed to pay Rs.1,00,000/- to the Crl. R.P.No.2702/2010 3 complainant as compensation u/s.357(3) of Cr.P.C. and the default sentence is fixed as 2 months imprisonment. 3. Though an appeal was filed, at the instance of the revision petitioner/accused by judgment dated 23.06.2010 in Crl.A.891/06, the Court of Addl. Sessions Judge (Fast Track Court-III), Thiruvananthapuram, allowed the appeal only in part. While confirming the conviction, the sentence of imprisonment is modified and reduced till raising of the court and the direction to pay the compensation and default sentence ordered by the trial court are confirmed. 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 execution and issuance of the cheque. But no case is made out to interfere with the concurrent findings of the Crl. R.P.No.2702/2010 4 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, some breathing time may be granted to the revision petitioner to deposit the compensation amount. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered favourably. In the result, this revision petition is disposed of confirming the conviction and sentence imposed against the revision petitioner u/s.138 of Negotiable Instruments Act as recorded by the courts below. Accordingly, the revision petitioner is directed to pay a sum of Rs.1,00,000/-, (Rupees One lakh only) as compensation to the complainant u/s.357(3) of Cr.P.C within one month from today. The default sentence will be attracted only in case of failure of paying the compensation amount within one month from Crl. R.P.No.2702/2010 5 today. Accordingly, the revision petitioner is directed to appear before the trial court on 13.10.2010 to receive the sentence of imprisonment and to pay the compensation amount. If there is any failure on the part of the revision petitioner in appearing before the court below as directed above and in making the deposit of compensation amount, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to realise the compensation amount. The coercive steps, if any, pending against the revision petitioner shall be deferred till 13.10.2010. Criminal revision petition is disposed of accordingly Sd/- V.K.MOHANAN, Judge. ss/. //True copy// P.A to Judge