IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 2ND JULY 2010 / 11TH ASHADHA 1932 Crl.Rev.Pet.No. 1819 of 2010() ------------------------------ CRA.222/2007 of ADDL. SESSIONS COURT (FAST TRACK-II, ADHOC), THRISSUR CC.1243/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHAVAKKAD .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED :- ----------------------------------------------------------------- ANILKUMAR, S/O.SREEDHARAN CHULIPARAMBIL HOUSE ENGANDIYUR AMSOM, DESOM, POKKOLANGRA, CHAVAKKAD TALUK. BY ADV. SRI.C.A.CHACKO SMT.C.M.CHARISMA SRI.N.A.SHAFEEK SRI.M.S.UNNIKRISHNAN (OASIS) RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE :- ------------------------------------------------------------------------------------ 1. K.K.MADHAVAN KARUMATHIL HOUSE, GURUVAYUR VILLAGE, CHAVAKKAD TALUK - 680 101 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR.M.R.VENUGOPAL THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt V.K.MOHANAN, J. ~~~~~~~~~~~~~ Crl.R.P.No.1819 of 2010 ~~~~~~~~~~~~~~~~~ Dated this the 2nd day of July 2010 O R D E R The accused in a prosecution for an offence u/s.138 of the Negotiable Instruments Act is the revision petitioner, as he is aggrieved by the order of conviction and sentence imposed by the courts below. 2. The case of the complainant is that the accused borrowed a sum of Rs.58,500/- from the complainant on 22.10.1999 for his personal purpose and promised to pay interest at the rate of 18% per annum and thus, on demanding for repayment of the principal amount as well as the interest thereon, the accused issued Ext.P1 cheque dated 5.12.2000 for an amount of Rs.70,000/-, which when presented for encashment dishonoured due to insufficient fund in the account maintained by the accused and the cheque amount was not repaid in spite of a formal demand Crl.R.P.No.1819 of 2010 : 2 : notice and thus the revision petitioner has committed the offence punishable u/s.138 of the Negotiable Instruments Act. With the said allegation, the complainant approached the Judicial First Class Magistrate, Chavakkad by filing a formal complaint, upon which cognizance was taken u/s.138 of the Negotiable Instruments Act and instituted C.C.No.1243/2004. During the course of the trial PW1 was examined from the side of the complainant and produced Exts.P1 to P7 documentary evidences. No evidence either oral or documentary adduced from the side of the defence. On the basis of the available materials and evidence on record, the trial court has found that the cheque in question was issued by the revision petitioner/accused for the purpose of discharging his debt due to the complainant. Thus accordingly the court held that, the complainant has established the case against the accused/revision petitioner and consequently found that the accused is guilty and thus convicted him u/s.138 of the Negotiable Instruments Act. Crl.R.P.No.1819 of 2010 : 3 : On such conviction, the trial court sentenced the revision petitioner/accused to undergo simple imprisonment for 3 months and to pay compensation of Rs.70,000/- to the complainant under Sec.357(3) of Cr.P.C. and default sentence is fixed as 3 months simple imprisonment. 3. Though an appeal was filed challenging the conviction and sentence imposed against the revision petitioner, by judgment dated 5.4.2010 in Crl.A.No.222/2007, the court of Additional Sessions Judge (Fast Track court-II, Adhoc), Thrissur allowed the appeal only in part and thus, while confirming the conviction, the sentence of imprisonment has modified and reduced to one day ie; till the rising of the court and the amount of compensation and the default sentence were confirmed by the appellate court in terms of the direction issued by the trial court. It is the above conviction and sentence are challenged in this revision petition. Crl.R.P.No.1819 of 2010 : 4 : 4. I have heard the learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. 5. 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 compensation amount. 6. Having regard to the facts and circumstances of the case I am of the view that the said submission can be considered favourably but subject to other facts and circumstances involved in the case. Going by the records and the findings of the court below which approved by this Court, a sum of Rs.70,000/- which belonging to the complainant is with the revision petitioner for the last 10 years. If that be so, while granting time to the revision petitioner to pay the amount, the amount already fixed by the court below can be enhanced slightly. Crl.R.P.No.1819 of 2010 : 5 : In the result, this revision petition is disposed of confirming the conviction as recorded by the trial court against the revision petitioner under Sec.138 of the N.I.Act while maintaining the sentence of imprisonment as modified and ordered by the lower appellate court, the revision petitioner is directed to pay a sum of Rs.73,000/- to the complainant as compensation under Sec.357(3) of Cr.P.C. and in default in paying the amount, the revision petitioner is directed to undergo simple imprisonment for a period of 4 months. The revision petitioner can pay the compensation amount either directly to the complainant or by remitting the same to the court below however, subject to the satisfaction of the learned Magistrate. Accordingly, the revision petitioner is directed to appear before the trial court on 4th October, 2010 to receive the sentence and to pay the compensation amount as directed by this court. In case any failure on the part of the revision petitioner in appearing before the court below as directed above and in Crl.R.P.No.1819 of 2010 : 6 : making the deposit of compensation amount, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence awarded against the revision petitioner. The coercive steps, if any, taken/pending against the revision petitioner shall be deferred till 4.10.2010. V.K.MOHANAN, JUDGE. Jvt