IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 11TH AUGUST 2010 / 20TH SRAVANA 1932 Crl.Rev.Pet.No. 2372 of 2010() ------------------------------------------- CRA.242/2006 of ADDL.SESSIONS COURT, THALASSERY CC.131/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT, KUTHUPARAMBA .................... REVN. PETITIONER/APPELLANT/ACCUSED --------------------------------------------------------------- JAYAN M.G., AGED 38 YEARS,'SREERAGAM' P.O.MANDHARATHUR, VIA.PUTHUPARAM VADAKARA. BY ADV. SRI.R.SUDHISH, SMT.M.MANJU, SRI.K.R.RANJITH. RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE ------------------------------------------------------------------------------------ 1. V. MOHAMMED RAFEEQUE, S/O.KUTTIALI, PARTNER, APPAREL ENTERPRISES, P.O.MOORIYAD, KOZHIKODE DISTRICT-670 643. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.C.M. NAZAR. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/08/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. V.K.MOHANAN, J. ---------------------------------------- Crl.R.P. No. 2372 of 2010 ---------------------------------------- Dated the 11th Day of 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 out of the business transaction between the complainant and the accused and towards the discharge of balance amount outstanding, the accused issued Ext.P1 cheque dated 16.12.2002 for Rs. 56,893/- 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, Kuthuparamba by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted C.C.NO.131/2003. During the course of trial, the complainant himself mounted to the box and adduced oral evidence as PW1. He has also produced CRL.R.P.No.2372/10 -:2:- Exts.P1 to P10 as documentary evidence. From the side of the defence, DW1 was examined and produced Ext.D1 and D2. 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 sum of Rs.60,000/- to the complainant as compensation under section 357(3) Cr.P.C., in default, he is directed to undergo simple imprisonment for a further period of 3 months. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 24.4.2010 in Crl.A.No.242/2006, the court of Addl. Sessions Judge, (Adhoc-III), Thalassery, allowed the appeal only in part and thus, while confirming the conviction, the sentence of imprisonment is reduced to imprisonment till rising of the court, but the order CRL.R.P.No.2372/10 -:3:- directing to pay compensation to the complainant is confirmed. 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 recorded by the courts below is confirmed. 4. As this court is not inclined to interfere with the conviction and sentence, the learned counsel for the revision petitioner submitted that a breathing time may be granted to the revision CRL.R.P.No.2372/10 -:4:- petitioner to receive the sentence and to pay the compensation amount. 5. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered favourably. In the result, this Crl.R.P is disposed of confirming the conviction recorded by the trial courts below for the offence under section 138 of the N.I.Act and the sentence of imprisonment as modified by the lower appellate court is maintained. The revision petitioner is directed to pay a sum of Rs.70,000/- as compensation to the complainant under section 357(3) within three months from today, in default, he is directed to undergo simple imprisonment for 3 months. Accordingly, the revision petitioner is directed to appear before the trial court on 11th November, 2010 to receive the sentence and to pay the compensation amount. The revision petitioner is free to pay the compensation amount either directly to the complainant or by depositing the same in the court below whichever subject to the satisfaction of the learned Magistrate. 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 CRL.R.P.No.2372/10 -:5:- his presence and to execute the sentence. Warrant if any pending against the revision petitioner shall be kept in abeyance till 11-11-2010. V.K.MOHANAN, JUDGE kvm/- CRL.R.P.No.2372/10 -:6:-