IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 21ST FEBRUARY 2011 / 2ND PHALGUNA 1932 Crl.Rev.Pet.No. 524 of 2011() ----------------------------- (CRA.91/2010 of SESSIONS COURT, THRISSUR CC.607/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT, WADAKKANCHERY .................... REVN. PETITIONERAPPELLANT/ACCUSED: -------------------------------------------------------------- VARGHESE.P.K, S/O.LATE KOCHAPPU, PULLOKARAN HOUSE, PALAKEL HOUSE, PALISSERY VILLAGE, THRISSUR DT. BY ADV. SRI.M.K.DILEEP KUMAR RESPONDENT/RESPONDENT/COMPLAINANT: ----------------------------------------------------------------- 1. VALLATHOLE NAGAR KURIES & FINANCE (P) LTD., CHERUTHURUTHY, THRISSUR DIST., REPD. BY ITS MANAGING DIRECTOR, RAMACHANDRAN.V, S/O.VELAYUDHAN NAIR, PLAVARTHALA HOUSE, CHERUTHURUTHY VILLAGE, THRISSUR DIST. PIN 679 531. RESPONDENT --------------------- 2. STATE OF KERALA REPD. BY DIRECTOR GENERAL OF PROSECUTIONS, HIGH COURT, ERNAKULAM. BY PUBLIC PROSECUTOR, SRI.V.TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK V.K.MOHANAN, J. --------------------------------------------- Crl.R.P.No. 524 of 2011 --------------------------------------------- Dated this the 21st day of February, 2011 O R D E R The accused in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') approached this Court by preferring the above revision petition challenging his conviction and sentence, imposed as per judgments of the trial court as well as the lower appellate court. 2. The case of the first respondent/complainant against the revision petitioner/accused is that the accused subscribed five numbers of Chitty No.VM 20 and the accused bid the chitties in auction and he had received the chitty amount after executing the agreement in favour of the complainant and the accused committed default in paying the chitty amount and thereafter, the accused issued cheque dated 18.8.2008 for Rs.1,00,000/- in favour of the complainant towards repayment of the outstanding balance, which, when presented for encashment, was dishonoured Crl.R.PNO. 524 of 2011 :-2-: for want of sufficient fund in the account maintained by the revision petitioner and the petitioner failed to pay the cheque amount, even though he was requested for the same by issuing a statutory notice. With the said allegation, the complainant approached the Judicial First Class Magistrate Court, Wadakkanchery whereupon C.C.No.607 of 2008 was instituted taking cognisance for the offence under Section 138 of the N.I.Act. During the trial of the above case, the first respondent/complainant adduced his evidence consisting of the documentary evidence such as Exts.P1 to P8 and the oral evidence of himself as PW1. Though no witness was examined from the side of the defence, Ext.D1 was marked. 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 held Crl.R.PNO. 524 of 2011 :-3-: that, the complainant has established the case against the revision petitioner/accused and consequently, found that the accused is guilty and thus, he is convicted under Section 138 of the N.I.Act. On such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment for three months and also directed to pay compensation of Rs.1 lakh to the complainant under Section 357(3) of the Cr.P.C. and the default sentence is fixed as one month simple imprisonment. 3. Though an appeal was filed against the above conviction and sentence by the revision petitioner/accused, as per judgment dated 6.1.2011 in Crl.A.No.91 of 2010, the court of the Sessions Judge, Thrissur allowed the appeal only in part and thus, while confirming the conviction, the sentence of imprisonment is modified and reduced and accordingly, the revision petitioner is sentenced to undergo simple imprisonment till the rising of the court, whereas the Crl.R.PNO. 524 of 2011 :-4-: direction to pay compensation, the compensation amount and the default sentence are confirmed by the appellate court. It is the above conviction, sentence and direction to pay the compensation, challenged in this Crl.R.P. 4. I have heard Mr.M.K.Dileep, learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. 5. Learned counsel vehemently submitted that the case of the complainant that the revision petitioner had executed and issued a cheque for Rs.1 lakh is absolutely false and incorrect and the trial court as well as the appellate court failed to consider the above fact. According to the learned counsel, when as per Ext.D1 complaint, the due amount is only for Rs.95,000/-, there is no explanation from the complainant as to why the revision petitioner/accused had issued Ext.P1 cheque for a higher amount of Rs.1 lakh. I am unable to sustain the above Crl.R.PNO. 524 of 2011 :-5-: contention. Admittedly, no reply was given to Ext.P4 notice. It is the only contention which is taken during Section 313 examination of the accused. When PW1 was examined, he had categorically stated, as evident from the discussion made by the learned Magistrate and the learned Sessions Judge, that Ext.P1 was issued towards the final settlement of the entire liability. It is also deposed by PW1 that the amount shown in Ext.D1 is after excluding the interest on the principal amount. On the basis of the above facts, the trial court as well as the appellate court have concurrently found that the cheque in question was issued towards the discharge of the liability due to the complainant. Even going by the contention of the learned counsel, it can be seen that the due amount is for Rs.99,683/-. Ext.P1 cheque is for Rs.1 lakh. Therefore, in the absence of any evidence adduced by defence, contrary to the evidence of the complainant, I find no reason to interfere with the order of Crl.R.PNO. 524 of 2011 :-6-: conviction recorded by the trial court as well as the appellate court concurrently. 6. Regarding the sentence, it is relevant to note that though the trial court imposed the sentence of imprisonment for three months, the appellate court reduced the same to one day simple imprisonment. Therefore, there is no scope to interfere with the sentence also. 7. As this Court is not inclined to interfere with the order of conviction and sentence, learned counsel for the revision petitioner submitted that some breathing time may be granted to the revision petitioner to pay the compensation amount fixed by the court below and also for receiving the sentence. Having regard to the facts and circumstances of the case, I am of the view that the said submission requires positive consideration and the petitioner can be granted forty five (45) days time. In the result, this Criminal Revision Petition is Crl.R.PNO. 524 of 2011 :-7-: disposed of confirming the conviction of the revision petitioner under Section 138 of the N.I.Act as recorded by the courts below. Accordingly, while confirming the sentence of imprisonment, the direction for payment of compensation and default sentence, ordered by the appellate court,the petitioner is granted forty five days time to pay the compensation amount to the complainant under Section 357(3) of the Cr.P.C. and it is made clear that the default sentence fixed by the appellate court will be attracted only if there is any failure on the part of the revision petitioner to pay the compensation amount within 45 days time from today. Accordingly, the revision petitioner is directed to appear before the trial court to receive the sentence of imprisonment fixed by the appellate court and to pay the compensation amount as ordered against him on 5th April,2011. In case of any failure on the part of the revision petitioner in appearing before the Crl.R.PNO. 524 of 2011 :-8-: trial court to receive the sentence and to pay the compensation amount on the above date, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence. Coercive steps, if any, pending against the revision petitioner shall be deferred till 5th April,2011. V.K.Mohanan, Judge. MBS/ Crl.R.PNO. 524 of 2011 :-9-: V.K.MOHANAN, J. -------------------------------------------- Crl.A.NO. OF 200 ------------------------------------ J U D G M E N T Crl.R.PNO. 524 of 2011 :-10-: DATED: -2-2010 Crl.R.PNO. 524 of 2011 :-11-: