IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 25TH FEBRUARY 2011 / 6TH PHALGUNA 1932 Crl.Rev.Pet.No. 976 of 2005() ----------------------------- CRA.137/2004 of SESSIONS COURT, THODUPUZHA CC.546/2003 of JUDL. MAGI. OF FIRST CLASS-I , THODUPUZHA .................... REVN. PETITIONER: --------------------- P.G.BABY, S/O.P.G.GEEVARGHESE, AGED 55 YEARS, PADIKKADAM VEEDU, NELLIMATTAM KARA, KOTHAMANGALAM TALUK, ERNAKULAM. BY ADV. SRI.SHAJI P.CHALY SRI.ABDUL JALEEL.A RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. MADHUKUMAR.P.V., PROPRIETOR, SWATHI ENTERPRISES, MANAKKADU ROAD, THODUPUZHA. ADV. SRI.GEORGEKUTTY MATHEW FOR R2 R1 BY PUBLIC PROSECUTOR SMT.P.N. SUMANGALA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.C. HARI RANI, J. ====================== CRL.R.P.NO. 976 OF 2005 ======================= DATED THIS THE 25TH DAY OF FEBRUARY 2011 ORDER The revision petitioner herein is the accused who is challenging the concurrent findings of guilty and conviction entered against him for the offence under Section 138 of the Negotiable Instruments Act. The revision petitioner is challenging the sentence also with regard to imposition of fine of Rs.5,000/- by the lower appellate court. The trial court on considering the evidence adduced and the facts and circumstances of the case found the accused guilty for the offence under Section 138 of the Negotiable Instruments Act as per judgment dated 13/4/2004 in C.C.No.546/2003. Accordingly, the accused was convicted and sentenced to undergo simple imprisonment for six months and to pay the cheque amount of Rs.52,000/- as compensation under CRRP 976/2005 -2- Section 357(3) of the Code of Criminal Procedure and in default of payment of compensation, simple imprisonment for three months. The appellate court as per judgment dated 22/2/2005 in Crl.Appeal No.137/2004 modified the sentence and allowed the appeal in part. The finding of guilty and conviction was confirmed. The sentence was reduced to imprisonment till rising of the court and directed to pay a fine of Rs.5,000/- and in default of payment of fine to undergo simple imprisonment for one month. The direction to pay compensation with default clause imposed by the trial court was sustained. This finding has been challenged by the accused/revision petitioner before this Court in this revision petition. 2. Heard the learned counsel appearing for the revision petitioner and the learned counsel for the second respondent. Heard the learned Public Prosecutor also. 3. At the time of argument, the learned counsel for the revision petitioner fairly conceded the finding of guilty and conviction confirmed by the appellate court and submitted that the concurrent finding of both the courts with regard to that CRRP 976/2005 -3- effect is not challenging at present. The learned counsel for revision petitioner prays that payment of fine as imposed by the appellate court may be avoided. That prayer has not been opposed by the learned counsel for the complainant. Considering the cheque amount and the facts of this case, I find that the imposition of fine with default sentence in a matter like this can be avoided and that the directions of the courts below for payment of compensation under Section 357(3)Cr.P.C. with default sentence will serve the criminal justice. Accordingly, this revision petition is allowed in part. The finding of guilty and conviction under Section 138 of the Negotiable Instruments Act is confirmed. 4. The sentence of imprisonment till rising of court and to pay a compensation of Rs.52,000/- (Rupees fifty two thousand) are confirmed. But the default sentence is modified for simple imprisonment for five months . The order of the appellate court to pay a fine of Rs.5,000/- and in default of payment of fine to undergo simple imprisonment for one month is set aside. The amount, if any, already deposited by the revision petitioner CRRP 976/2005 -4- herein can be given credit to towards the amount of compensation awarded in this case. The entire amount of compensation, if realised, can be released to the complainant on filing proper application. The revision petitioner is granted five months time till 25/7/2011 to avoid default sentence. The revision petitioner shall appear and his sureties shall produce him before the learned Magistrate on 26/7/2011 for execution of sentence. M.C. HARI RANI JUDGE ks.