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. 2697 of 2010() ------------------------------------ (CRA.482/2008 of II ADDL.SESSIONS COURT, KOLLAM ST.597/2000 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOLLAM) .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ----------------------------------------------------- VISWANATHAN, S/O.SREEDHARAN, SANKUMUKATHU KIZHAKKATHIL, VADAKKEVILA P.O., KOLLAM. BY ADV. SRI.THYPARAMBIL THOMAS THOMAS RESPONDENT(S): STATE & COMPLAINANT ------------------------------------------------- 1. SREE GOKULAM CHITS & FINANCE CO.(P) LTD. BISHOP JEROME NAGAR, KOLLAM, REPRESENTED BY THE POWER OF ATTORNEY HOLDER MR.R.SALU S/O.RAMESAN, PULLIYIL VEEDU, THATTAMALA, KOLLAM. 2. KERALA STATE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 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.2697 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 he 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 26.08.2002 for a sum of Rs.20,650/- (Rupees Twenty thousand six hundred and fifty only), which when presented for encashment dishonoured 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-II, Kollam, by filing a formal complaint, upon which cognizance was taken u/s.138 of Crl. R.P.No.2697/2010 2 Negotiable Instruments Act and instituted S.T.No.597/2000. During the trial of the case, PW1 was examined from the side of the complainant and Exts.P1 to P7 were marked. No evidence either oral or documentary adduced from the side of the defense. 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 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 30 days and to pay a compensation of Rs.25,000/- to the complainant u/s. 357(3) of Cr.P.C and the default sentence is fixed as 30 days imprisonment. It is also ordered that on realisation of fine amount, it shall be paid to the complainant. Crl. R.P.No.2697/2010 3 3. In appeal, at the instance of the revision petitioner/ accused, by judgment dated 10.06.2010 in Crl.A.482/2008 the Court of Second Addl. Sessions Judge, Kollam, dismissed the appeal but the sentence was modified to the effect that the appellant has to pay Rs.20,650/- as fine and the appellant has to undergo simple imprisonment till rising of the court. In default of paying the fine amount, the accused is directed to undergo simple imprisonment for 7 days. It is also ordered that on realisation of the fine amount, the same shall be paid to the complainant as compensation. 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 Crl. R.P.No.2697/2010 4 made out to interfere with the concurrent findings of the 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 conviction, the counsel for the revision petitioner submitted that, some breathing time may be granted to the revision petitioner to pay the fine amount. Having regard to the facts and circumstances involved in this case, I am of the view that the said submission can be considered favourably and one month time can be granted to pay the fine amount. In the result, the conviction of the revision petitioner u/s.138 of Negotiable Instruments Act is confirmed as recorded by the courts below. Accordingly, the sentence of imprisonment as modified and fixed by the appellate court is also confirmed. Thus while confirming the sentence to pay the fine of Rs.20,650/- the petitioner is granted one Crl. R.P.No.2697/2010 5 month time to pay the fine amount and the default sentence fixed by the appellate court will attract only if there is failure on the part of the revision petitioner in depositing the fine amount within one month from today. But default sentence is enhanced to one month simple imprisonment. Accordingly, the revision petitioner is directed to appear before the trial court on 13.10.2010 to receive the sentence of imprisonment and deposit the fine amount. If any failure on the part of the revision petitioner in appearing before the court below as directed above and in making the payment of fine 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 till 13.10.2010. Criminal revision petition is disposed of accordingly. Sd/- V.K.MOHANAN, Judge. ss/. //True copy// P.A to Judge