IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 18TH OCTOBER 2010 / 26TH ASWINA 1932 Crl.Rev.Pet.No. 2319 of 2010() ------------------------------ AGAINST THE ORDER DATED 26/03/2010 IN CRA.641/08 II ADDL.SESSIONS COURT, KOZHIKODE ST.421/2006 of JUDL. MAGISTRATE OF FIRST CLASS-IV, KOZHIKODE .................... REVN. PETITIONER: APPELLANT/ACCUSED -------------------------------------- U.P.MOIDEEN KUTTY, S/O.KOMU, AGED 55 YEARS, ACHANVEETTIL HOUSE, POOVATHUMPARAMBA P.O., KOZHIKODE. BY ADV. SRI.K.M.FIROZ SMT.M.SHAJNA RESPONDENTS: RESPONDENTS/COMPLAINANTS --------------------------------------- 1. K.SAIDADLAVI, S/O.ABDULLA KUTTY, KOYANBURATH MEETAL HOUSE, PAYYADI MEETHAL, PANTHIRANKAVU, KOZHIKODE. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY P.P. SRI V. TEK CHAND. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/10/2010, ALONG WITH CRRP NO. 2324 OF 2010 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl. R.P. No.2319 & 2324 OF 2010 ---------------------------------------- Dated 18th Day of October, 2010 ORDER As these two Crl.R.Ps are arising out of a common judgment dated 26.3.2010 in Crl.A.Nos 640 of 2008 and 641/2008 of the Sessions Court, Kozhikode which arose from a common judgment dated 30.6.2008 in S.T.Nos. 219 and 421/2006 of the Court of Judicial First Class Magistrate Court-IV, Kozhikode and the parties are one and the same, both these Crl.R.Ps are heard together and being disposed of by this common order. 2. Crl.R.P.No.2319/2010 is connected with Crl.A.No.641/2008 and S.T.No.421/2006 where the allegation is that the accused borrowed a sum of Rs.40,000/- from the complainant and towards the partial discharge of the said liability, the accused issued a cheque dated 13.1.2006 for Rs.20,000/- and another cheque dated 16.1.2006 for the same amount and when those cheques were presented for encashment, the same were dishonoured for the reason of insufficient funds in the account maintained by the accused CRL.RP.NO.2319/10 & 2324/10 -:2:- and the cheque dated 16.1.2006 is the subject matter of S.T.421/2006 and Crl.R.P.2319/2010 and the cheque dated 13.1.2006 is the subject matter of S.T.No.219/2006 and Crl.R.P.No.2324/10. In both the S.T.Cases, the trial court sentenced the revision petitioner/accused to undergo simple imprisonment for one month and to pay a sum of 20,000/-. In appeals, at the instance of the revision petitioner in both the cases, while confirming direction to pay compensation and the default sentence, the sentence of imprisonment was modified and reduced to imprisonment till rising of the court. 3. Reiterating the contentions 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 court has concurrently found in favour of the complainant and against the revision petitioner-accused. CRL.RP.NO.2319/10 & 2324/10 -:3:- Though I have heard the counsel for the revision petitioner 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. 4. As this Court is not inclined to interfere with the order of conviction, the learned counsel submitted that the revision petitioner in both the cases may be granted a breathing time to pay the compensation amount. I am of the opinion that the said submission can be considered positively but subject to other inputs involved in this case. In both the cases, the cheques are pertained to the year 2006 and as per the findings of the courts below, which approved by this Court, the amount shown in the cheques are belonging to the complainant but the same is with the revision petitioner for the last four years. Thus, according CRL.RP.NO.2319/10 & 2324/10 -:4:- to me, while granting some time, the compensation amount can be enhanced slightly. 5. In the result, Crl.R.P. 2319/2010 is disposed of confirming the conviction of the revision petitioner under section 138 of the Act and also confirming the sentence of imprisonment as modified and fixed by the appellate court, the revision petitioner is directed to pay a sum of Rs.24,000/- to the complainant as compensation under section 357(3) of Cr.P.C within three months from today and in case of default in paying the amount within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for one month. Accordingly, the revision petitioner in Crl.R.P.No.2319/10 is directed to appear before the trial court on 18.1.2011 to receive the sentence of imprisonment and to pay the compensation amount. Crl.R.P.No.2324/10 is disposed of confirming the conviction of the revision petitioner under section 138 of the Act but the substantive sentence of imprisonment modified and reduced by the appellate court is confirmed CRL.RP.NO.2319/10 & 2324/10 -:5:- and the revision petitioner is directed to pay a sum of Rs.24,000/- as compensation to the complainant under section 357 of Cr.P.C.within three months from today and in case of default in paying the amount within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for one month. Accordingly, the revision petitioner is directed to appear before the trial court on 18.1.2011 to receive the sentence of imprisonment and to pay the compensation amount. The substantial sentence imposed by the trial court and modified by the appellate court in S.T.No.421/2006 will run concurrently with the sentence of imprisonment in S.T.No.219/2006 of the same court. If there is any failure on the part of the revision petitioner in appearing before the trial court on the above date to receive the sentence and to pay the compensation, the trial court is free to take coercive steps to execute the sentence and for realization of the compensation amount. On realization of the compensation amount, the same shall be paid to the complainant under section 357(3) of Cr.P.C. Coercive steps if any pending against the revision petitioner CRL.RP.NO.2319/10 & 2324/10 -:6:- shall be kept in abeyance till 18.1.2011. The Crl.R.P.s are disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- CRL.RP.NO.2319/10 & 2324/10 -:7:-