IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 4TH JUNE 2010 / 14TH JYAISTHA 1932 Crl.Rev.Pet.No. 1717 of 2010() ------------------------------ CRA.548/2008 of ADDL. SESSIONS COURT (ADHOC) III, PALAKKAD ST.2272/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PALAKKAD .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED :- --------------------------------------------------------------- UDAYAKUMAR, S/O. RAMAKRISHNAN, 5/134 (6/133), KALAPPURA VEEDU, KADUKKAMKUNNU, PALAKKAD. BY ADVS. SMT.C.G.PREETHA MR.T.K.SANDEEP RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE :- ---------------------------------------------------------------------------------- 1. MANIKANDAN,S/O. VELAYUDHAN, ADON ADVERTISING AGENCY, ROOM NO. 101, T.B. COMPLEX, PALAKKAD. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR.M.R.VENUGOPAL THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt V.K.MOHANAN, J. ----------------------------- Crl.R.P.No.1717 of 2010 --------------------------------- Dated this the 4th day of June 2010 O R D E R The accused is the revision petitioner and he challenges his conviction and sentence under Sec.138 of the N.I.Act. 2. The case of the complainant is that the revision petitioner/accused borrowed a sum of Rs.60,000/- from him and on demand for the repayment of the amount, the accused issued a cheque dated 12.7.2006, which when presented for encashment dishonoured as there was no sufficient fund in the account maintained by the accused. It is also the case of the complainant that though statutory notice was sent, no amount is paid and hence he approached the Judicial First Class Magistrate Court-I, Palakkad by filing a complaint with the above allegation and Crl.R.P.No.1717 of 2010 : 2 : accordingly, the trial court took cognizance for the offence under Sec.138 of N.I.Act and instituted S.T.No.2272/2006. During the trial of the case, the complainant adduced evidence as PW1 and also produced Exts.P1 to P6. No evidence was adduced from the side of the defence. On the basis of available materials on record, the trial court found that the accused is guilty and accordingly he is convicted under Sec.138 of the N.I.Act and sentenced him to undergo simple imprisonment for 6 months and also sentenced him to pay a fine of Rs.60,000/- in default, he is directed to undergo imprisonment for a further period of 6 months. Aggrieved by the above order of conviction and sentence, the revision petitioner has preferred Crl.Appeal No.548/2008 and by judgment dated 1.2.2010, the Court of Sessions, Palakkad allowed the appeal only in part and thus, while confirming the conviction, the sentence of imprisonment awarded by the trial court is set aside and the sentence of fine was modified and directed the revision Crl.R.P.No.1717 of 2010 : 3 : petitioner to pay a sum of Rs.75,000/- instead of Rs.60,000/- and the default sentence is fixed as 3 months. It is also directed that on realisation of the fine amount, it has to be given to the complainant under Sec.357(1)(b) of Cr.P.C. It is the above conviction sentence challenged in this writ petition. 3. I have heard the learned counsel appearing for the revision petitioner and also gone through the judgments of the courts below. 4. On consideration of the arguments advanced by the learned counsel for the petitioner and also on perusal of the judgments of the courts below it appears to me that the revision petitioner/accused has no challenge against the Ext.P1 cheque and its execution and issuance and also the signature of the revision petitioner contained therein. The case of the accused is that he had transaction with the complainant and he had availed a sum of Rs.10,000/- and at that time, a blank cheque was entrusted with the Crl.R.P.No.1717 of 2010 : 4 : complainant and the same was not returned even though the entire amount has cleared. According to the revision petitioner, the only dispute is with respect to the interest. Absolutely no evidence is produced to substantiate the above version of the defence. When the complainant established his case with supporting materials and evidence, it is for the revision petitioner/accused to effectively rebut the presumption available with respect to the complaint. 5. In the present case, no evidence is adduced from the side of the defence and as such the revision petitioner miserably failed to rebut the presumption. It is under the above factual and legal background, the trial court as well as the lower appellate court convicted and sentenced the revision petitioner. Therefore, there is no merit in the revision petitioner. 6. The learned counsel for the revision petitioner submitted that some time may be granted to the revision Crl.R.P.No.1717 of 2010 : 5 : petitioner to deposit the fine amount. However, the said request can be considered in favour of the revision petitioner but subject to relevant facts and circumstances involved in the cases. 7. In the present case, the cheque in question is dated 12.7.2006 and therefore, it is clear that for the last 4 years an amount of Rs.60,000/-, which belonging to the complainant, is with the revision petitioner. It is also relevant to note that when the trial court has imposed sentence of imprisonment, the lower appellate court has set aside the same and the default sentence is also fixed as three months. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner under Sec.138 of the N.I.Act as imposed by the trial court as well as the lower appellate court and accordingly the revision petitioner is sentenced to pay a sum of Rs.77,000/- and in default in paying the said amount, he is directed to undergo Crl.R.P.No.1717 of 2010 : 6 : simple imprisonment for 6 months and on realization of the above fine amount, a sum of Rs.75,000/- shall be paid to the complainant under Sec.357(1)(b) of Cr.P.C. Accordingly, the revision petitioner is directed to appear before the trial court on 6.9.2010 to deposit the fine amount and in case any failure on the part of the revision petitioner to appear before the trial court and depositing the fine amount, the trial court is directed to take coercive steps to secure the presence of the revision petitioner and to execute the sentence. V.K.MOHANAN, JUDGE. Jvt