IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 7TH OCTOBER 2010 / 15TH ASWINA 1932 Crl.Rev.Pet.No. 2857 of 2010() ------------------------------ CRA.36/2009 of III ADDL.SESSIONS COURT, KOLLAM ST.308/2007 of JUDL.MAGISTRATE OF FIRST CLASS-I, KOLLAM .................... PETITIONER(S): APPELLANT:ACCUSED: ------------------------------------------------------------- JAGADAMMA, W/O.SASIDHARAN PILLAI, CHEMBAKASSERY VEEDU, MUKHATHALA P.O., KOLLAM. BY ADVS. SRI.JOHNSON MANAYANI, SRI.BENHUR JOSEPH MANAYANI. RESPONDENT(S): COMPLAINANT AND STATE: ---------------------------------------------------------------------- 1. SIVARAJAN, S/O.SREEDHARAN, KUNNATHUMELETHIL VEEDU, PERUMPUZHA P.O., KOLLAM - 691 504. 2. STATE OF KERALA, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------------------ Crl.R.P. No. 2857 of 2010 ---------------------------------------- Dated the 7th Day of October, 2010 ORDER The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the revision petitioner as she is aggrieved by the conviction and sentence imposed against him as per the impugned judgment. 2. The case of the complainant is that the accused borrowed an amount of Rs.50,000/- from the complainant and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 12.1.2004 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 caused to issue by him. With the said allegation, the complainant approached the Judicial First Class Magistrate-IV, Kollam by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted CRL.RP.2857/10 -:2:- S.T.No.308/2007. During the course of trial, the complainant himself mounted to the box and adduced oral evidence as PW1. He has also produced Exts.P1 to P6 as documentary evidence. From the side of the defence, no evidence, either oral or documentary was produced. 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 imprisonment till the rising of the court and to pay a fine of Rs.50,000/-. The default sentence is fixed as simple imprisonment for a period of month. It is also ordered that the fine amount if paid shall be given to the complainant under section 357(1)(b) Cr.P.C. CRL.RP.2857/10 -:3:- 3. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 16.7..2010 in Crl.A.No.36/2009, the court of III Addl. Sessions Judge, Kollam dismissed the appeal confirming the conviction and sentence. It is the above judgments of the trial court as well as the lower appellate court challenged in this Crl.R.P. 4. 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 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 CRL.RP.2857/10 -:4:- 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. 5. As this court is not inclined to interfere with the conviction, the counsel submitted that a breathing time may be granted to the revision petitioner to pay the fine amount. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered favourably, and while granting some time to pay the fine, the amount can be enhanced slightly. In the result, this Crl.R.P is disposed of confirming the conviction recorded by the courts below for the offence under section 138 of the N.I.Act. Accordingly, confirming the sentence of imprisonment ordered by the courts below and affirming the order to pay fine, the fine amount is enhanced to the tune or Rs.65,000/- and the revision petitioner is directed to deposit the fine amount within three months from today and in case of any default in paying the CRL.RP.2857/10 -:5:- above amount within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for three months. Accordingly the revision petitioner is directed to appear before the trial court on 7th January, 2011 to receive the sentence and to pay the fine amount. On realisation of the fine amount, a sum of Rs.62,500/- shall be paid to the complainant as compensation under section 357(1)(b) of Cr.P.C. and the remaining amount shall be deposited in the State Exchequer. 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. Coercive steps, if any, pending shall be deferred till 7..1.2011. This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, kvm/- JUDGE CRL.RP.2857/10 -:6:-