IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 12TH AUGUST 2010 / 21ST SRAVANA 1932 Crl.Rev.Pet.No. 2276 of 2010() ------------------------------------------- CRA.106/2009 of ADDL. SESSIONS COURT (FAST TRACK-II), ALAPPUZHA CC.208/2008 of CHIEF JUDICIAL MAGISTRATE COURT, ALAPPUZHA .................... PETITIONER/APPELLANT/ACCUSED --------------------------------------------------- V.J. BENNY, S/O.JOY JOSEPH, MANIMANGALAM HOUSE, THATHAMPALLY P.O., ALAPPUZHA. BY ADV. SRI.S.SANAL KUMAR, SMT.BHAVANA VELAYUDHAN. RESPONDENTS/RESPONDENTS/COMPLAINANT/STATE --------------------------------------------------------------------------------- 1. ALAPPUZHA CO-OPERATIVE AGRICULTURAL RURAL DEVELOPMENT BANK LTD. NO.A 94, NEAR YMCA BRIDGE, ALAPPUZHA, REPRESENTED BY ITS SECRETARY, SRI.T.N. VISWANATHAN PILLAI, PIN-688 001. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.PUSHPALATHA M.K. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12/08/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. V.K.MOHANAN, J. ---------------------------------------- Crl.R.P. No. 2276 of 2010 ---------------------------------------- Dated the 12th 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 bank is that the accused availed a loan of Rs.1,00,000/- from the complainant and the accused was liable to repay the amount with interest at the rate of 11% per annum and he failed to repay the amount and subsequently, issued cheque dated 9.1.2008 for Rs.90,992/-, 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 Chief Judicial Magistrate, CRL.R.P. 2276/10 -:2:- Alappuzha by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted C.C.No.208/2008. During the course of trial, PW1 was examined from the side of the complainant and produced Exts.P1 to P12. 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 till the rising of the court and also directed to pay a a fine of Rs.91,000/- in default, he is directed to undergo simple imprisonment for a period of 3 months. It is also ordered that the fine, if paid, shall be CRL.R.P. 2276/10 -:3:- given to the complainant as compensation under section 357(1) Cr.P.C. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 27.5.2010 in Crl.A.No.106/2009, the court of Addl. Sessions Judge, (Fast Track-II), Alappuzha, dismissed the appeal confirming the conviction and sentence ordered by the trial court. 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 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 CRL.R.P. 2276/10 -:4:- 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 this court is not inclined to interfere with the conviction and sentence, 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 deposit the fine amount. 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 subject to slight modification with respect to the fine amount. In the result, this Crl.R.P is disposed of confirming the conviction recorded by the courts below against the revision petitioner for the offence under section 138 of the N.I.Act. Accordingly, while confirming the sentence of imprisonment, as fixed by the trial court which confirmed by the appellate court , the revision petitioner is also sentenced to pay a fine of Rs.92,000/- within three months CRL.R.P. 2276/10 -:5:- from today and in default in paying the fine amount within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for three months. Accordingly, the revision petitioner is directed to appear before the trial court on 12th November, 2010 to receive the sentence and to pay the fine 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. Coercive steps if any taken against the revision petitioner shall be kept in abeyance till 12.11.2010. This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE. kvm/- CRL.R.P. 2276/10 -:6:- kvm/-