IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 29TH JUNE 2010 / 8TH ASHADHA 1932 Crl.Rev.Pet.No. 1943 of 2010() ------------------------------ CRA.786/2009 of 1ST ADDL. SESSIONS COURT, THRISSUR CC.175/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT, VADAKKANCHERY .................... REVISION PETITIONER(S): APPELLANT/ACCUSED: -------------------------------------------------------------------------- K.V.ARJUNAN,AGED 337, KONIPARAMBIL HOUSE, MUNDATHIKODE,TALAPPILLY TALUK,THRISSUR DISTRICT. BY ADVS. SRI.THIYYANNOOR RAMAKRISHNAN, SRI.ARUN KUMAR.P., SMT.AMBIKA RADHAKRISHNAN RESPONDENT(S): RESPONDENTS /STATE & COMPLAINANT: ----------------------------------------------------------------------------------------- 1. A.SURENDRAN,S/O.KAMALAKSHI AMMA, THAPPANATHU HOUSE,MUNDATHIKODE VILLAGE, TALAPPILLY TALUK, THRISSUR DISTRICT, PIN 680 623. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM, KOCHI-31. R2 BY PUBLIC PROSECUTOR SRI. VENUGOPAL M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ---------------------------------------- Crl.R.P. No.1943 of 2010 ---------------------------------------- Dated the 29th 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.20,000/- was due to the complainant from the accused and towards the discharge of the said liability, the accused issued a cheque dated 10.3. 2008 for an amount of Rs.20,000/- 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, Wadakkanchery by filing a proper complaint upon which cognizance was taken under section Crl.R.P.No.1943/10 -:2:- 138 of the N.I.Act and instituted C.C.No.175/2008. 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. 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 3 months and to pay a fine of Rs.20,000/-, in default, he is directed to undergo simple imprisonment for a further period of one month. It is also ordered that on realisation of the fine amount, the same shall be paid as compensation to the Crl.R.P.No.1943/10 -: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 27.5.2010, in Crl.A.No.786/2009, the Ist Addl.Sessions Judge, Thrissur, allowed the appeal only in part and thus while confirming the conviction, the sentence is modified and reduced. Accordingly, the revision petitioner-accused is sentenced to undergo simple imprisonment till rising of the court and he is directed to pay compensation of Rs.20,000/- under section 357(3) Cr.P.C and the default sentence is fixed as one month simple imprisonment. 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 Crl.R.P.No.1943/10 -:4:- 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 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. Having regard to the facts and circumstances involved in the case, I am of the view that the said prayer can be considered favourably and three month's time can be granted to the petitioner. In the result, this Crl.R.P is disposed of confirming the conviction of the revision petitioner-accused under section 138 of the N.I.Act as recorded by the courts below. Thus, Crl.R.P.No.1943/10 -:5:- while maintaining the sentence of imprisonment and the order for compensation, issued by the lower appellate court, the revision petitioner is granted three month's time to pay the amount. Accordingly, the revision petitioner is directed to appear before the trial court on 29th September, 2010 to receive the sentence and to pay the compensation amount. 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.No.1943/10 -:6:-