IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 8TH OCTOBER 2010 / 16TH ASWINA 1932 Crl.Rev.Pet.No. 2958 of 2010() ------------------------------ CRA.34/2010 of SPL.COURT SPE/CBI-II & IV ADDL.SESSIONS COURT, ERNAKULAM CC.2096/2007 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... REVISION PETITIONER(S): APPELLANT/ACCUSED: ---------------------------------------------------------------------------- P.V.MOHAN, S/O.VELAYUDHAN, MAHIMA HOUSE, RAVIPURAM, ERNAKULAM. BY ADV. SRI.T.RAJESH RESPONDENT(S): ACCUSED: -------------------------------------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, KOCHI-31. 2. SABIN XAVIER, S/O.XAVIER, VELUTHEDATH HOUSE, CHERIYAKADAVU, KANNAMALI P.O., KOCHI-682 008. R1 BY PUBLIC PROSECUTOR SMT. SUMANGALA P.N. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. - - - - - - - - - - - - - - - - - Crl. R.P. No. 2958 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8 th day of October, 2010. J U D G M E N T The accused in a prosecution for an offence u/s.138 of 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/revision petitioner received Rs.1,00,000/- from the complainant towards the sale consideration of gas cylinders, he issued a cheque dated 05.06.2007 for a sum of Rs.1,00,000/- (Rupees One lakh only), which when presented for encashment dishonoured and the cheque amount was not repaid inspite of a formal demand notice and thus the revision petitioner has committed the offence punishable u/s.138 of Negotiable Instruments Act. With the said allegation, the complainant approached the Court of Judicial Ist Class Magistrate-II, Kochi by filing a formal Crl. R.P. No. 2958/2010 2 complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.2096/2007. During the trial of the case complainant himself was examined as PW1 and Exts.P1 to P5 were marked. No evidence on the side of the defense, either documentary or oral. 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 found 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 Negotiable Instruments Act. On such conviction, the trial court sentenced the revision petitioner/accused to undergo simple imprisonment for a period of six months and also directed to pay a fine of Rs.1,03,000/-. It is also ordered that if the fine amount is realized, an amount of Rs.1,00,000/- shall be paid to the complainant as Crl. R.P. No. 2958/2010 3 compensation u/s.357(1) of Cr.P.C and the default sentence is fixed as 45 days simple imprisonment. 3. Aggrieved by the above order of conviction and sentence, the revision petitioner had approached the appellate court by Judgment dated 03.07.2010 in Crl.Appeal No.34/2010, the Court of The IV Addl. Sessions Judge, Ernakulam, allowed the appeal only in part, confirming the conviction. But the sentence is reduced into imprisonment of one day i.e till the rising of the court. But the sentence to pay of the fine, default sentence and provision for payment of compensation awarded by the trial court are confirmed. 4. I have heard the learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. 5. Reiterating the stand taken by the accused/revision petitioner during the trial and appeal, submitted that the complainant has not established the transaction and also the execution and issuance of the cheque. But no case is made out to interfere with the concurrent findings of the Crl. R.P. No. 2958/2010 4 trial court as well as the lower appellate court. 6. As this court is not inclined to interfere the order of conviction, the learned counsel for the revision petitioner submitted that some breathing time may be granted to the revision petitioner to pay the fine amount. I am of the view that the said submission can be considered favourably and granted 45 days time to deposit the fine amount. In the result, this revision petition is disposed of confirming the conviction against the revision petitioner u/s.138 of Negotiable Instruments Act as recorded by the courts below. Accordingly, while confirming the sentence of imprisonment and the sentence to pay the fine amount, revision petitioner is granted 45 days time from today to pay the fine amount and it is made clear that the default sentence fixed by the trial court will be attracted only in case of default in paying the fine amount within 45 days from today. Accordingly, the revision petitioner is directed to appear before the trial court on 24.11.2010 to receive the modified sentence and to deposit the fine amount. If there is Crl. R.P. No. 2958/2010 5 any default in paying the fine amount, the trial court is free to take coercive steps to execute the sentence and to realize the fine amount. Criminal revision petition is disposed of accordingly. Sd/- V.K.MOHANAN, Judge. ss/. //True copy// P.A to Judge