IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 5TH OCTOBER 2010 / 13TH ASWINA 1932 Crl.Rev.Pet.No. 2918 of 2010() ------------------------------ CRA.440/2006 of ADDL. SESSIONS COURT, IRINJALAKUDA CC.762/2004 of ADDL.MUNSIFF AND JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR. .................... REVISION PETITIONER(S): APPELLANT/ACCUSED: ---------------------------------------------------------------------------- SATHEESH BABU, GOVERNMENT EMPLOYEE, S/O.KUTTAN NAIR, VADASSERY HOUSE, P.O.PERINJANAM, KODUNGALLUR TALUK. BY SRI.P.VIJAYA BHANU, SENIOR ADVOCATE, BY ADV. SRI.M.REVIKRISHNAN, SRI.V.C.SARATH. RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE: --------------------------------------------------------------------------------------------- 1. RAJAN, S/O.RAMAN, VALIYAPARAMBIL HOUSE, P.O.PERINJANAM, KODUNGALLUR TALUK. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT. C.M. CHARISMA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 05/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ---------------------------------------- Crl.R.P. No. 2918 OF 2010 ---------------------------------------- Dated the 5th Day October , 2010 ORDER The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the revision petitioner as he/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 issued Ext.P1 cheque dated 20.1.2004 for an amount of Rs.1,50,000/-which when presented for encashment was 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 court of Judicial First Class Magistrate, Kodungallur, by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted C.C.No.762/2004. During the course of trial, the complainant himself mounted CRL.R.P 2918/10 -:2:- to the box and adduced oral evidence as PW1. He has also produced Exts.P1 to P5 as documentary evidence. From the side of the defence, Dws 1 and 2 were examined and produced Exts.D1 to D4. 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 a period of one year and to pay compensation of Rs.1,60,000/- to the complainant under section 357(3) Cr.P.C. The default sentence is fixed as simple imprisonment for a period of six months. 3. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred CRL.R.P 2918/10 -:3:- an appeal, by judgment dated 31.8.2010 in Crl.A.No.440/2006, the court of Addl. Sessions Judge, Irinjalakuda 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 record which were elaborately considered by the courts CRL.R.P 2918/10 -:4:- 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 the sentence of imprisonment ordered by the courts below in unreasonable and exorbitant and a lenient view may be taken in the matter of sentence and the revision petitioner may be granted some time to pay the compensation. 6. Having regard to the facts and circumstances involved in the case, the sentence of imprisonment ordered by the courts below requires some modification and the revision petitioner can be granted some time to pay the compensation. In the result, this Crl.R.P is disposed of confirming the conviction of the revision petitioner recorded by the courts below for the offence under section 138 of the N.I.Act. Thus while maintaining the sentence of imprisonment, the period of sentence is modified and reduced to one day simple imprisonment, i.e. till the rising CRL.R.P 2918/10 -:5:- of the court, and the revision petitioner is granted one months time to pay compensation. Accordingly, the revision petitioner is directed to appear before the trial court on 6.11.2010 to receive the sentence and to pay the compensation amount. It is made clear that the default sentence ordered by the court below will be attracted only in case of any default in paying the compensation amount within one month from today. 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 6.11.2010 This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, Judge. kvm/- CRL.R.P 2918/10 -:6:-