IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 18TH JUNE 2010 / 28TH JYAISTHA 1932 Crl.Rev.Pet.No. 1822 of 2010() --------------------------------------- CRA.318/2003 of SESSIONS COURT, THALASSERY CC.449/2000 of JUDL.MAGISTRATE OF FIRST CLASS COURT, MATTANNUR ........................................................................................ REVN. PETITIONER(S): REV.PETITIONER/APPELLANT/ACCUSED ------------------------------------------------------------------------------------------- SAJU YOMAS, S/O.YOMAS, AGED 40 YEARS, TEACHER, R/AT VELIMANAM, ARALAM AMSOM, KANNUR DISTRICT. BY ADVS. SRI.TOM JOSE SMT.GEETHA JOB(OZHUKAYIL) RESPONDENT(S): RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE ------------------------------------------------------------------------------------------------------------- 1. THOMAS MATHEW, S/O.MATHEW, AYIRRAMTHARA, KILIYANTHARA P.O. PIN - 670 706. 2. STATE OF KERALA, R/BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV.SMT.M.K.PUSHPALATHA, PUBLIC PROSECUTOR FOR R2. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ami/ V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1822 of 2010 ------------------------------- Dated this the 18th day of June, 2010. O R D E R This revision petition is filed by the accused in a prosecution for the offence u/s.138 of Negotiable Instruments Act, challenging the conviction and sentence. 2. The case of the complainant is that the accused borrowed a sum of Rs.50,000/- for a period of one month, in January 2000 and towards the discharge of the said liability, he issued Ext.P1 cheque dated 20.2.2000 for a sum of Rs.50,000/-, which when presented for encashment dishonoured as there was no sufficient fund in the account maintained by the accused and he had also failed to pay the amount, even though he was demanded for the same by sending a statutory notice and therefore the accused has committed the offence u/s.138 of Negotiable Instruments Act. With the above allegation, the complainant had filed a formal complaint approaching the Judicial First Class Magistrate Court, Mattannur, whereupon cognizance was taken and instituted C.C.No.449/00. During the Crl. R.P.No.1822 of 2010 2 trial of the case, the complainant himself mounted to the box and adduced oral evidence as PW1 and he had also produced Exts.P1 to P6 documents in support of his allegations. No evidence either oral or documentary were adduced from the side of the defence. On the basis of the available materials and evidence on record, the trial court found that the complainant has succeeded in establishing the case against the accused and accordingly found that the revision petitioner/accused is guilty of the offence u/s.138 of Negotiable Instruments Act. Thus, on convicting the revision petitioner u/s.138 of Negotiable Instruments Act, he is sentenced to undergo simple imprisonment till rising of the court and further ordered to pay a compensation of Rs.50,000/- to the complainant u/s.357(3) of Cr.P.C. Challenging the above conviction and sentence the revision petitioner has preferred an appeal and by judgment dated 10.9.2009 in Crl.A.318/03, the Court of Sessions, Thalassery, allowed the appeal only in part, confirming the conviction but modifying the sentence and reducing the same till rising of the court and also Crl. R.P.No.1822 of 2010 3 ordered to pay compensation as directed by the trial court. It is the above order of conviction and sentence challenged in this revision petition. 3. I have heard Adv.Shri.Tom Jose, the learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. The learned counsel for the revision petitioner submitted that the complainant has miserably failed to establish the transaction and according to the learned counsel the only document produced by the complainant is Ext.P1 cheque and there is no other contemporary document to prove the transaction. On hearing the arguments of the learned counsel and also on perusal of the judgments of the courts below, I am of the view that all the facts and contentions raised by the learned counsel has been elaborately considered by the trial court as well as the lower appellate court and found against the revision petitioner. I do not fine any reason to interfere with such a concurrent findings of the courts below. 4. The learned counsel for the revision petitioner submitted Crl. R.P.No.1822 of 2010 4 that some breathing time may be granted to the revision petitioner to receive the sentence and to pay the compensation. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission of the learned counsel can be considered favourably. 5. The date of Ext.P1 cheque is 20.2.2000. Thus going by the records it is only to be presumed that an amount of Rs.50,000/-, which belong to the complainant is in the hands of the revision petitioner for the last 10 years. Thus while granting time in favour of the revision petitioner to make the payment, the amount of compensation can be enhanced slightly. In the result, this revision petition is disposed of confirming the conviction recorded by the trial court as well as the lower appellate court against the revision petitioner u/s.138 of Negotiable Instruments Act. The sentence of imprisonment imposed by the lower appellate court in suppression of the sentence awarded by the trial court, is confirmed. He is directed to pay compensation of Rs.55,000/- to the complainant u/s.357(3) Crl. R.P.No.1822 of 2010 5 of Cr.P.C. and in default of payment of compensation he is directed to undergo simple imprisonment for 3 months. The revision petitioner can pay the amount of compensation to the complainant directly, subject to the satisfaction of the trial court or remit the same in the trial court. Thus the revision petitioner is directed to appear before the trial court on 20.9.2010 to receive the sentence and to pay the compensation. If there is any failure in appearing before the court below as directed above and in making the payment, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence awarded against him. If any warrant is pending against the revision petitioner, the execution of the same shall be deferred till 20.9.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/