IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 18TH MAY 2010 / 28TH VAISAKHA 1932 Crl.Rev.Pet.No. 1542 of 2010() -------------------------------------- CRA.60/2009 of SESSIONS COURT, KASARAGOD CC.254/2008 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II, (ADDL.MUNSIFF), KASARAGOD .................... REVN. PETITIONER(S): ------------------------------- IBRAHIM, AGED 46 YEARS, S/O.SEETHIKUNHI, BERKA KUNNIL HOUSE, POST CHENGALA, KASARAGOD TALUK AND DISTRICT. BY ADVS. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH RESPONDENT(S): -------------------------- 1. C.A.ABOOBACKER, S/O.ABDULLA HAJI, R/at CHALA ROAD, P.O.VIDHYA NAGAR, KASARAGOD TALUK AND DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE DIRECTOR OF PUBLIC PROSECUTIONS, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SMT.M.K.PUSHPALATHA, PUBLIC PROSECUTOR, FOR R2. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ami/ V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1542 of 2010 ------------------------------- Dated this the 18th day of May, 2010. O R D E R The revision petitioner is the accused in a prosecution for the offence u/s.138 of Negotiable Instruments Act. He challenges his conviction and sentence, as per the impugned judgment. 2. The allegation against the revision petitioner is that he had received a sum of Rs.3 lakhs from the complainant as hand loan and towards the repayment of the said loan, the revision petitioner issued a cheque for Rs.3 lakhs, which when presented for encashment dishonoured and thus committed the offence punishable u/s.138 of Negotiable Instrument Act. During the trial, the complainant adduced evidence, consists of oral testimony of PW1 to PW3 and documentary evidence which were marked as Exts.P1 to P6. From the side of the defence, the accused himself was examined as DW1 and produced Exts.D1 and D2. On the basis of the materials available on record the trial court found that the revision petitioner is guilty, which was confirmed Crl. R.P.No.1542 of 2010 2 by the lower appellate court. It is the above conviction and sentence challenged in this revision petition. 3. I have gone through the judgments of the trial court as well as the lower appellate court and also heard the learned counsel for the revision petitioner. Though there is a dispute regarding the actual amount received by the accused/revision petitioner, the transaction is admitted and also admitted the execution and issuance of the cheque. The learned counsel pointed out that actually the revision petitioner received only a sum of Rs.35,000/- and the said amount was repaid and in addition to that amount, another sum of Rs.30,000/- was paid to the complainant. The trial court as well as the lower appellate court, after appreciating the evidence and materials on record, found that the complainant has established his case beyond reasonable doubt. Though the defence had taken a contention to the effect that the amount repaid and disputed the actual amount borrowed, no evidence was adduced to substantiate such a plea. In the absence of any evidence to atleast Crl. R.P.No.1542 of 2010 3 probabilise the defence version, it can not be said that the accused had succeeded in rebutting the presumptions available in favour of the complainant, by virtue of S.139 of NI Act, especially when the complainant has established his case beyond reasonable doubt. Therefore there is no merit in the revision petition. 4. The learned counsel submitted that, some breathing time may be granted to make the payment of compensation and a lenient view may be taken with respect to the sentence. Having regard to the facts and circumstances involved in the case, I am of the view that some time can be granted as prayed for, but subjected to enhancement of compensation amount so as to make the end of justice. 5. With regard to the sentence of the revision petitioner, I am of the view that the sentence of imprisonment, awarded by the trial court and modified by the appellate court, can be reduced to, till raising of the court and the compensation amount can be enhanced to Rs.3,25,000/-. Crl. R.P.No.1542 of 2010 4 In the result, this criminal revision petition is disposed of confirming the conviction of the revision petitioner, punishable u/s.138 of NI Act, as recorded by the trial court as well as the appellate court. Accordingly, the revision petitioner is sentenced to undergo imprisonment till the raising of the court and to pay a compensation of Rs.3,25,000/-. The revision petitioner is directed to appear before the trial court on 18.8.2010, to receive the sentence of imprisonment and to pay the compensation amount as refixed by this court. The coercive steps if any against the revision petitioner, shall be kept in abeyance till 18.8.2010. In case of default on the part of the revision petitioner in appearing before the trial court and paying the compensation amount, the trial court is free to take coercive steps for procuring the presence of the revision petitioner and to execute the sentence and realisation of the compensation amount. In case of making default in making the enhanced compensation amount, the revision petitioner is directed to undergo simple imprisonment for a period of 6 months. Subject to the above modification, with Crl. R.P.No.1542 of 2010 5 respect to the sentence, compensation and default sentence; and confirming the conviction, this revision petition is disposed of. V.K.MOHANAN, Judge. ami/