IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 25TH JUNE 2010 / 4TH ASHADHA 1932 Crl.Rev.Pet.No. 1920 of 2010() ------------------------------ CRA.210/2009 of SESSIONS COURT, KASARAGOD CC.10/2009 of JUDICIAL FIRST CLASS MAGISTRATE - II (ADDL.MUNSIFF), KASARAGOD .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED :- ------------------------------------------------------------------- SRI.C.A.MOHAMMED, PROPRIETER, BLUE MARINE BOTTING COMPANY, ULIYATHADUKKA, MADHUR POST, KASARAGOD DISTRICT. BY ADV. SRI.T.B.SHAJIMON SMT.GOVINDU P.RENUKADEVI RESPONDENT(S)/COMPLAINANT/STATE :- ------------------------------------------------------------ 1. KARUNAN, S/O.KRISHNAN BALICHAPPADAN, ASHA NIVAS, PATTATHANAM, BAKAL.P.O, PALLIKARE II VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR MR.B.JAYASURYA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ----------------------------- Crl.R.P.No.1920 of 2010 --------------------------------- Dated this the 25th day of June 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 the accused borrowed a sum of Rs.1,50,000/- from the complainant and towards the discharge of the said debt, the accused issued Exts.P1 and P3 cheques each for an amount of Rs.75,000/- and when the said cheques were presented for encashment, the same were dishonoured for want of sufficient fund in the account maintained by the revision petitioner and it is the further case of the complainant that even after serving a statutory notice for return of the amount, the revision Crl.R.P.No.1920 of 2010 : 2 : petitioner has not paid the cheque amount and thus the revision petitioner has committed the offence punishable under Sec.138 of the N.I.Act. With the said allegation, the complainant approached the Judicial First Class Magistrate- II (Addl.Munsiff), Kasaragod by filing a formal complaint upon which cognizance was taken under Sec.138 of the N.I.Act and instituted C.C.No.10/2009. During the trial of the case, PW1 was examined from the side of the complainant and Exts.P1 to P6 were marked. No evidence either oral or documentary adduced from the side of the defence. On convicting the revision petitioner/accused under Sec.138 of the N.I.Act, the trial court sentenced the revision petitioner to undergo simple imprisonment for 7 days and directed to pay Rs.1,50,000/- as compensation to the complainant under Sec.357(3) of Cr.P.C. and the default sentence is fixed as simple imprisonment for 4 months. Though an appeal was filed by the revision petitioner challenging the above order of conviction and sentence, by Crl.R.P.No.1920 of 2010 : 3 : judgment dated 30.3.2010 in Crl.A.No.210/2009, the court of Sessions, Kasaragod dismissed the appeal, confirming the conviction and sentence. 3. The learned counsel for the revision petitioner submitted that some breathing time may be granted to the revision petitioner to pay the compensation amount and also submitted that the sentence of imprisonment may be set aside. 4. 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 other facts and circumstances involved in the case. 5. The cheques in question were issued in the year 2008. The total amount covered by the cheques is for an amount of Rs.1,50,000/- which belong to the complainant and as per the records and findings of the courts below and as approved by this Court, with the revision petitioner/accused. Therefore, while granting time to pay Crl.R.P.No.1920 of 2010 : 4 : the compensation amount, the amount can be enhanced slightly especially in view of the decision of the Apex Court reported in 2010 in Damodar.S.Prabhu v. Sayed Babalal.H [J.T. 2010 (4) SC 457]. In the result, this revision petition is disposed of confirming the conviction recorded by the courts below under Sec.138 of the N.I.Act against the revision petitioner. Accordingly the sentence of imprisonment ordered by the courts below is reduced till the rising of the court and the revision petitioner is directed to pay a sum of Rs.1,55,000/- to the complainant as compensation under Sec.357(3) of Cr.P.C. and on default in paying the amount, the revision petitioner is directed to undergo simple imprisonment for a period of 6 months. Accordingly the revision petitioner is directed to appear before the trial court on 27th September, 2010 to deposit the compensation amount as directed by this court. In case any failure on the part of the revision petitioner in appearing before the court below as Crl.R.P.No.1920 of 2010 : 5 : 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. The execution of warrant, if any, pending against the revision petitioner, shall be deferred till 27.9.2010. V.K.MOHANAN, JUDGE. Jvt