IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 29TH SEPTEMBER 2010 / 7TH ASWINA 1932 Crl.Rev.Pet.No. 2747 of 2010() ---------------------------- CRA.772/2008 of II ADDL. SESSIONS COURT, PALAKKAD ST.182/2008 of JUDL. FIRST CLASS MAGISTRATE COURT-III, PALAKKAD ................. REVN. PETITIONER / APPELLANT / ACCUSED : ---------------------------------------------------------------- V.J.JAMES, S/O.JOSEPH, TTE, QUARTERS NO.487 B, RLY.COLONY, H.NAGAR, PALAKKAD. BY ADV. SRI.T.K.SANDEEP RESPONDENTS / RESPONDENTS / COMPLAINANT & STATE : ------------------------------------------------------------------------------------- 1. P.CHANDRADAS, S/O.PAREKUTTY, KAMALA NIVAS, KAVILPAD, PALAKKAD – 678 001. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. V. TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn V.K.MOHANAN, J. ------------------------------------------ Crl.R.P. No. 2747 of 2010 ---------------------------------------- Dated the 29th Day of September, 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.60,000/- from the complainant and towards the discharge of the said liability, the accused issued Ext.P2 cheque dated 7.11.2007 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 ST.No.182/2008. During the course of trial, the CRL.R.P 2747/10 -:2:- complainant himself mounted to the box and adduced oral evidence as PW1. He has also produced Exts.P1 to P4(2) 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/-. The default sentence is fixed as simple imprisonment for a period of one month. It is also ordered that on realisation of the fine amount, the same shall be paid to the complainant. 3. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an CRL.R.P 2747/10 -:3:- appeal, by judgment dated 28.6.2010 in Crl.A.No.772/2008, the court of II Addl. Sessions Judge, Palakkad 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 below. Therefore, I find no reason to interfere with such concurrent finding of the courts CRL.R.P 2747/10 -:4:- 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 a breathing time may be granted to the revision petitioner to pay the compensation amount. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered favourably, but subject to slight enhancement in the fine amount. In the result, this Crl.R.P is disposed of confirming the conviction recorded by the courts below against the petitioners for the offence under section 138 of the N.I.Act. Accordingly, the sentence of fine imposed by the trial court and affirmed by the appellate court is confirmed. Accordingly, while confirming the sentence to pay fine, the fine amount is enhanced to the tune of Rs.60,000/- which shall be deposited 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 three months. Accordingly the revision CRL.R.P 2747/10 -:5:- petitioner is directed to deposit the fine amount before the trial court on or before 29th December, 2010 . On realisation of the fine amount, a sum of Rs.57,000/- shall be paid to the complainant as compensation under section 357(1)(b) of Cr.P.C. The remaining amount shall be deposited in the State Exchequer. If there is any default on the part of the revision petitioner in depositing the fine amount 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 29.12.2010 This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/-