IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 30TH JUNE 2010 / 9TH ASHADHA 1932 Crl.Rev.Pet.No. 1795 of 2010() ------------------------------ CRA.673/2009 of SESSIONS COURT, TRIVANDRUM ST.2534/2005 of JUDICIAL FIRST CLASS MAGISTRATE COURT IV,NEDUMANGADU .................... REVISION PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------------------------------------------- T.ROSAMMA, VALIYAVILA VEEDU, PERINGAMALA, KALLIYOOR P.O., THIRUVANANTHAPURAM. BY ADVS. SRI.POOVAPPALLY M.RAMACHANDRAN NAIR, SRI.R.V.ABHISHEK. RESPONDENT(S): RESPONDENTS:COMPLAINANT/STATE: --------------------------------------------------------------------------------------- 1. G.BALAKRISHNAN NADAR, PRAMOTH BHAVAN, KAWADITHALAKKAL, MANIKANTESWARAM P.O., THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. VENUGOPAL M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ---------------------------------------- Crl.R.P. No.1795 of 2010 ---------------------------------------- Dated the 30th day of June, 2010 ORDER The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the revision petitioner as he is aggrieved by the conviction and sentence imposed against him as per the impugned judgment. 2. The case of the complainant is that an amount of Rs.35,000/- was due to the complainant from the accused and towards the discharge of the said liability, the accused issued a cheque dated 21.7.2005 which when presented for encashment, dishonoured as there was no sufficient fund in the account maintained by the accused and the revision petitioner/accused miserably failed to repay the cheque amount in spite of a formal notice issued by him. With the said allegation, the complainant approached the Judicial First Class Magistrate-IV, Nedumangad by filing a FORMAL complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted S.T.No.2534/2005. During CRL.R.P.1795/10 :-2-: the course of trial, the complainant himself mounted to the box and adduced oral evidence as PW1. He has also produced Exts.P1 to P5 as documentary evidence. No evidence, either oral or documentary, produced from the side of the defence. After evaluation of the evidence and the materials on record, the trial court has found that Ext.P1 cheque was issued towards the discharge of a legally enforceable debt that due to the complainant and accordingly, the trial court held that the complainant has succeeded in establishing the allegation against the revision petitioner-accused and found that the revision petitioner-accused is guilty. Consequently, the accused is convicted under section 138 of the N.I.Act. On such conviction, the trial court sentenced the revision petitioner- accused to undergo simple imprisonment for 4 months and to pay a fine of Rs.35,000/-, in default, she is directed to undergo simple imprisonment for a further period of 2 months. It is also ordered that on realisation of the fine amount, the same shall be paid as compensation to the CRL.R.P.1795/10 :-3-: complainant under section 357(1) (b) Cr.P.C. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 8.4.2010 in Crl.A.No.673/2009/, the Sessions Judge, Thiruvananthapuram, confirmed the conviction and modified the sentence by reducing the imprisonment to simple imprisonment till rising of the court and the fine amount and default sentence are confirmed. It is the above order of conviction and sentence challenged in this Crl.R.P. 3. Reiterating the contention 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. Though the revision petitioner is heard elaborately, nothing CRL.R.P.1795/10 :-4-: is brought out to take a different view by interfering 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. The learned counsel for the revision petitioner submitted that a breathing time may be granted to the revision petitioner to receive the sentence and to pay the fine amount. Having regard to the facts and circumstances involved in the case, especially, the fact that an amount of Rs.35,000/- which belongs to the complainant is with the revision petitioner for the last 5 years and considering the legal position as per the decision of the apex Court in Damodar S.Prabhu v. Sayed Babalal H (J.T.2010 (4) SC 457), while granting some time to revision petitioner, the amount of fine can be enhanced. In the result, this Crl.R.P is disposed of confirming the conviction recorded by the trial court as well as the lower CRL.R.P.1795/10 :-5-: appellate court for the offence under section 138 of the N.I.Act . Thus while maintaining the conviction and the order of sentence imposed by the lower appellate court, the revision petitioner is sentenced to pay a fine of Rs.38,000/- and in default she is directed to undergo simple imprisonment for a period of 4 months and on realisation of the fine amount, the entire amount shall be paid to the complainant under section 357(1)(b) Cr.P.C. Accordingly, the revision petitioner is directed to appear before the trial court on 30th September, 2010. If there is any default on the part of the revision petitioner in appearing before the trial court as directed above, the trial court is free to take coercive steps against the revision petitioner to secure his presence and to execute the sentence and for realisation of the amount. V.K.MOHANAN, JUDGE kvm/- CRL.R.P.1795/10 :-6-: kvm/-