IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 29TH SEPTEMBER 2010 / 7TH ASWINA 1932 Crl.Rev.Pet.No. 2307 of 2010() ----------------------------- CRA.420/2008 OF ADDL. SESSIONS COURT, PALAKKAD ST.1633/2005 OF JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PALAKKAD .................. REVN. PETITIONER / APPELLANT / ACCUSED : ---------------------------------------------------------------- SAJEEV.P.P., S/O.PAPPUKUTTY, LECTURER, N.S.S.COLLEGE, NEMMARA, PALAKKAD. BY ADV. SRI.VINOD KUMAR.C RESPONDENT / RESPONDENT / COMPLAINANT : ------------------------------------------------------------------- 1. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. K.S.ABDUL RASHEED, S/O.K.A.SULAIMAN, KONAVANKATTU HOUSE, PARUTHIPULLY, PERINGOTTUKURUSSI, ALATHUR, PALAKKAD-4. R1 BY PUBLIC PROSECUTOR SRI. V. TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn V.K.MOHANAN, J. ------------------------------------------ Crl.R.P. No. 2307 of 2010 ---------------------------------------- Dated the 29th Day of September, 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 towards the liability due to the complainant and his wife, the accused issued two cheques dated 15.1.2005 and 16.1.2005 for Rs.1,00,000/- and Rs.50,000/- respectively, 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 court of Judicial First Class Magistrate-I, Palakkad by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted C.C.No.1633/2005. During the course of trial, the CRL.R.P.2307/10 -2- complainant himself mounted to the box and adduced oral evidence as PW1. He has also produced Exts.P1 to P8 as documentary evidence. 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 the cheques were 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 one year and to pay compensation of Rs.1,50,000/- to the complainant under section 357(3) Cr.P.C. The default sentence is fixed as simple imprisonment for a period of six months. 3. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an CRL.R.P.2307/10 -3- appeal, by judgment dated 31.3.2010 in Crl.A.No.420/2008, the court of Addl. Sessions Judge-1, Palakkad, allowed the appeal only in part. While conviction under section 138 is confirmed, the sentence imposed is modified and reduced. Accordingly, the appellate court in supersession of the substantial sentence imposed on the accused, sentenced him to pay a fine of Rs.1,52,000/- and in default of the payment of fine, he is directed to undergo simple imprisonment for one month. It is also ordered that a sum of Rs.1,50,000/- out of the fine is to be paid to the complainant as compensation under section 357(1) of Cr.P.C. It is the above judgments of the trial court as well as the lower appellate court challenged in this Crl.R.P. 4. 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 CRL.R.P.2307/10 -4- 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. 5. As this court is not inclined to interfere with the order of conviction, the counsel submitted that a breathing time may be granted to the revision petitioner to pay the fine amount. considering the relevant inputs of this case, I am of the view that the said submission can be considered favourably, but subject to slight enhancement in the fine amount. 6. As per the records the cheques in question are dated 15.1.2005 and 16.1.2005. Thus as per the records and findings of the courts below, which upheld by this court, a CRL.R.P.2307/10 -5- sum of Rs.1,50,000/- which belongs to the complainant is with the revision petitioner for the last five years. It is also relevant to note that though the trial court court had imposed sentence of one year imprisonment, the appellate court has set aside the said substantive sentence and imposed only fine. Having regard to the facts and circumstances involved in the case, I am of the view that while granting some time to the revision petitioner to pay the fine, the amount can be enhanced slightly. In the result, this Crl.R.P is disposed of confirming the conviction recorded by the courts below for the offence under section 138 of the N.I.Act. Thus while confirming the sentence of fine, fixed by the appellate court, the revision petitioner is granted two months time to deposit the fine and the fine amount is enhanced to Rs.1,75,000/- (Rs.one lakh seventy five thousand only), which shall be deposited within two months from today, and in case of any default in depositing the above amount within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for six months. Accordingly the revision petitioner is directed CRL.R.P.2307/10 -6- to deposit the fine amount on or before 29.11.2010. On realisation of the fine amount Rs.1,70,000/0- shall be given to the complainant as compensation under section 357(1)(b) of Cr.P.C and the remaining amount shall be deposited into the state Exchequer. If there is any default on the part of the revision petitioner in depositing the fine amount, trial court is free to take coercive steps against the revision petitioner to secure his presence and to execute the sentence and for realisation of the amount. Coercive steps, if any, pending shall be deferred till 29.11.2010 This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- CRL.R.P.2307/10 -7-