IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 31ST AUGUST 2010 / 9TH BHADRA 1932 Crl.Rev.Pet.No. 2582 of 2010() ------------------------------ CRA.736/2008 of I ADDL. SESSIONS COURT, PALAKKAD ST.372/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT-III, PALAKKAD .................... REVISION PETITIONER(S): APPELLANT/ACCUSED: ------------------------------------------------------------------------------ VELAYUDHAN, S/O. CHAMU, AGED 63 YEARS, IMBILAMKATTIL HOUSE, KINASSERY.P.O., PALAKKAD TALUK, PALAKKAD DISTRICT. BY ADV. SRI.JACOB SEBASTIAN RESPONDENT(S): RESPONDENTS:COMPLAINANT & STATE: ----------------------------------------------------------------------------------------- 1. RAJU, S/O. KRISHNAN, AGED 34 YEARS, DOOR NO.32/126, PRANAMKULAM, VADAKKANTHARA, PALAKKAD TALUK, PALAKKAD DISTRICT, PIN - 678 004. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT. SUMANGALA P.N. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 31/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ---------------------------------------- Crl.R.P. No. 2582 of 2010 ---------------------------------------- Dated the 31st August, 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 the accused borrowed an amount of Rs.50,000/- from him and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 15.8.2006 for Rs.50,000/- 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 caused to issue by him. With the said allegation, the complainant approached the Judicial First Class Magistrate-III, Palakkad by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted C.C.NO.372/2007. During the course of trial, the CRL.R.P.2582/10 :-2-: complainant himself mounted 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, 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 pay a fine of Rs.50,000/- to the complainant , in default, he is directed to undergo simple imprisonment for a period of one month. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 21.6.2010 in Crl.A.No.736/2008, the court of Addl. Sessions Judge-I, CRL.R.P.2582/10 :-3-: Palakkad, dismissed the appeal, confirming the conviction and sentence of the revision petitioner. It is the above judgments of the trial court as well as the lower appellate court 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 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 CRL.R.P.2582/10 :-4-: recorded by the courts below is confirmed. 4. As this court is not inclined to interfere with the order of conviction and sentence imposed by the courts below, the learned counsel for the revision petitioner submitted that a breathing time may be granted to the revision petitioner to pay the fine amount. According to me, the said submission can be considered but subject to slight enhancement with respect to the fine amount since an amount of Rs.50,000/- which due to the complainant is with the revision petitioner for the last four years. In the result, this Crl.R.P is disposed of confirming the conviction recorded by the courts below against the revision petitioner for the offence under section 138 of the N.I.Act and also confirming the sentence of fine. But the fine amount is enhanced to the tune of 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 fine amount within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for a period of 45 days. Accordingly, the revision petitioner is directed to deposit a sum of Rs.65,000/- CRL.R.P.2582/10 :-5-: being the fine amount as revised and refixed by this Court on or before 30.11.2010. If there is any default on the part of the revision petitioner in remitting the fine amount on or before 30.11.2010, the trial court is free to take coercive steps to realise the fine amount and also to execute the default sentence. On realisation of the fine amount, a sum of Rs.62,500/- (Rs.Sixty two thousand five hundred only) shall be paid to the complainant as compensation under section 357(1) (b) Cr.P.C. and the remaining amount shall be deposited into the State Exchequer. Coercive step, if any, pending against the revision petitioner shall be kept in abeyance till 30.11.2010. This Crl.R.P is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- CRL.R.P.2582/10 :-6-: