IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 7TH JULY 2010 / 16TH ASHADHA 1932 Crl.Rev.Pet.No. 1816 of 2010() ------------------------------ CRA.1028/2008 of ADDL. DISTRICT & SESSIONS JUDGE, FAST TRACK (ADHOC-II), KOZHIKODE. ST.51/2008 of SPECIAL JUDICIAL FIRST CLASS MAGISTRATE (MARAD CASES), KOZHIKODE .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED :- ------------------------------------------------------------------- ASSAINAR A., S/O.BEERAN, AGED 47 YEARS, THIATTIL HOUSE, NEAR PANCHAYATH OFFICE, P.O.KEEZHARIYAOOR, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SMT.LATHA PRABHAKARAN SRI.K.M.JAMALUDHEEN RESPONDENT(S)/ RESPONDENTS IN APPEAL/COMPLAINANTS & STATE :- ---------------------------------------------------------------------------------------------- 1. VIJAYAN P., AGED 52 YEARS, S/O.GOVINDAN, CHANDHANKANDI PARAMBA, THEDAMBATTUTHAZHAM, VENGERI AMSOM, DESOM P.O., KARAPARAMBA, CALICUT-10. 2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR. PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ----------------------------- Crl.R.P.No.1816 of 2010 --------------------------------- Dated this the 7th day of July 2010 O R D E R The accused in a prosecution for an offence u/s.138 of the 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 towards the discharge of a debt due to the complainant, the accused issued a cheque dated 15.10.2007 for an amount of Rs.45,000/-, which when presented for encashment dishonoured for want of 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 the Negotiable Instruments Act. With the said Crl.R.P.No.1816 of 2010 : 2 : allegation, the complainant approached the Special Judicial First Class Magistrate (Marad Cases), Kozhikode by filing a formal complaint, upon which cognizance was taken u/s.138 of the Negotiable Instruments Act and instituted S.T.No.51/2008. During the course of the trial the complainant himself examined as PW1 and Exts.P1 to P6 were marked. Though there was no witness examined from the side of the defence, Ext.D1 was marked. 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 held 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 the Negotiable Instruments Act. On such conviction, the trial court imposed sentence of simple imprisonment till the rising of the court and also Crl.R.P.No.1816 of 2010 : 3 : ordered to pay compensation of Rs.45,000/- to the complainant under Sec.357(3) of Cr.P.C. and the default sentence is fixed as simple imprisonment for 3 months. 3. Though an appeal was filed, the same was dismissed by judgment dated 5.4.2010 in Crl.A.No.1028/2008 of the court of Addl.District and Sessions Judge, Fast Track (Adhoc-II) Kozhikode confirming the conviction and sentence. It is the above conviction and sentence are 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 trial court as well as the lower Crl.R.P.No.1816 of 2010 : 4 : appellate court. Therefore, I find no merit in the revision petition and accordingly the conviction endorsed by the courts below against the revision petitioner u/s.138 of the Negotiable Instruments Act is approved. 6. The learned counsel for the revision petitioner submitted that a breathing time may be granted to the revision petitioner to deposit the compensation amount. 7. 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 slight enhancement of the compensation amount since the cheque is dated 15.10.2007. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner under Sec.138 of the N.I.Act and also confirming the sentence of imprisonment ordered by the trial court. The compensation amount is enhanced and the revision petitioner is directed to pay a sum of Rs.50,000/- to the complainant as Crl.R.P.No.1816 of 2010 : 5 : compensation under Sec.357(3) of Cr.P.C. within 3 months from today. In case any failure in paying the compensation within the above stipulated time, the accused/revision petitioner is directed to undergo simple imprisonment for a period of 3 months. Accordingly the accused/revision petitioner is directed to appear before the trial court on 7th October, 2010 to receive the sentence and to pay the compensation amount. In case 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 execute the sentence awarded against the revision petitioner. V.K.MOHANAN, JUDGE. Jvt