IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 11TH APRIL 2008 / 22ND CHAITHRA 1930 Crl.Rev.Pet.No. 478 of 2000() ---------------------------------------- CRA.258/1998 OF IIND ADDL. SESSIONS COURT, ERNAKULAM. CC.621/1997 of JUDL.MAGISTRATE OF FIRST CLASS-II, ERNAKULAM .................... REVN. PETITIONER: APPELLANT/ ACCUSED --------------------------- K.S.SELVAN, PROPRIETOR, KING CHOICE MARINE PRODUCTS KARUVELIPPADY, COCHIN. BY ADV. SRI.S.SREEKUMAR RESPONDENTS: RESPONDENTS/ COMPLAINANT ---------------------- 1. BPL AGENCIES (PVT) LTD., WILLINGTON ISLAND, COCHIN 3, REP.BY ITS POWER OF ATTORNEY HOLDER AND MANAGER, FINANCE AND ADMINISTRATION, C.M.ABDUL KAREEM. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. AMJETH ALI SRI.N.SUKUMARAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.RP. NO.478/2000 ORDER ON CRL.MP. NO.2714/2000 IN CRL.RP. NO.478/2000 DISMISSED 11.04.2008 SD/- A.K.BASHEER, JUDGE /TRUE COPY/ P.S. TO JUDGE tss A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 478 of 2000-C - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of April, 2008. ORDER Petitioner was tried for the offence punishable under Section 138 of the Negotiable Instruments Act at the instance of respondent No.1 herein. The trial court found the petitioner guilty and he was accordingly convicted and sentenced to undergo simple imprisonment for 3 months and to pay a fine of Rs.1,70,000/- and in default to undergo simple imprisonment for a further period of 3 months. It was further directed that the amount of fine, if realised, shall be paid to the complainant as compensation. The above order of conviction and sentence was confirmed in appeal by the Sessions Court. Hence this revision petition. 2. The case of the complainant which is a company was that a sum of Rs.1,69,955/- was due from the accused towards freight charges. The accused had issued Ext.P2 cheque dated November 20, 1996 for a sum of Rs.1,70,000/- towards discharge of the said liability. But when the cheque was presented for encashment, it was dishonoured due to insufficiency of funds in the account of the accused. Though a statutory demand notice was issued by the complainant, it did not evoke any response. 3. Pws.1 and 2 were examined and Exts.P1 to P6 were marked on the side of the complainant. Ex.C1 extract of the bank account of the accused was also marked in the case. 4. The defence set up by the accused was that Ext.P2 was a blank signed cheque entrusted by him to the complainant as security Crl.RP.478/2000 2 in connection with the business transaction. When questioned under Section 313 Cr.P.C. the accused had candidly admitted that he was prepared to discharge the liability. The courts below had considered the oral and documentary evidence on record as well as the clear admission of liability by the accused, while holding him guilty. 5. Having heard learned counsel for the parties and having perused the materials available on record, I do not find any reason to interfere with the concurrent order of conviction. 6. However it is brought to my notice that the complainant Company had filed a civil suit against the accused as OS.187/99 before the Principal Sub Court, Kochi for recovery of the dues covered under Ext.P2 cheque. It is also admitted by the parties that the civil court had already passed a decree in favour of the complainant. Learned counsel for the complainant submits that steps are being taken to execute the decree. Learned counsel for the accused submits that the liability would be discharged if some reasonable opportunity is given to him. He prays that utmost leniency may be shown in the matter of sentence, since the accused could not pay off the liability because of heavy losses in his business. 7. Therefore while confirming the order of conviction, the sentence of imprisonment imposed on the petitioner is set aside. Petitioner shall suffer imprisonment till the rising of the court on his appearance before the trial court. Petitioner shall pay the amount of compensation as directed by the courts below. 8. Petitioner shall appear before the trial court on August 30, Crl.RP.478/2000 3 2008 and remit the sum of Rs.1,70,000/- as directed by the court below, to be released to the complainant. On his appearance the learned Magistrate shall ensure that the petitioner undergoes imprisonment till the rising of the court. If any amount has been deposited by the accused in connection with this liability, the said amount shall be given credit while making deposit as directed. If the petitioner fails to appear and remit the fine as directed above, the sentence of imprisonment imposed on him shall stand confirmed. Revision petition is disposed of in the above terms. A.K. Basheer Judge. an. Crl.RP.478/2000 4 A.K.Basheer, J. Crl.R.P. 747 of 2002 Order 11/04/2008.