IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 18TH AUGUST 2010 / 27TH SRAVANA 1932 Crl.Rev.Pet.No. 2474 of 2010() ------------------------------ CRA.343/2007 of THE SESSIONS JUDGE, THIRUVANANTHAPURAM. ST.132/2006 of JFCM-VI, THIRUVANANTHAPURAM. .................... REVN. PETITIONER: APPELLANT/ACCUSED -------------------------------------- RAJENDRAN @ JOSE D., PAZHAVILA HOUSE, C.R.A.NO.83, CHADIYARA, POOJAPPURA P.O., THIRUVANANTHAPURAM. BY ADV. SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENTS: STATE & COMPLAINANT ---------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. MURUKAN C.PILLAI, T.C.19/69, SARANYA, THIRUMALA P.O., T.B.R.A. 92, THIRUVANANTHAPURAM. R1 BY SMT. PUSHPALATHA M.K. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.R.P. No. 2474 of 2010 ---------------------------------------- Dated the 18th 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 an amount of Rs.15,000/- was due to the complainant from the accused and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 25.6.2002 which when presented for encashment, dishonoured as the “account closed” 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-VI, Thiruvananthapruam by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted S.T.Case Crl.R.P. No.2474/10 -:2:- No.132/2006. During the course of trial, the complainant himself mounted to the box and adduced oral evidence as PW1. He has also produced Exts.P1 to P6 and X1 and X2 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 undergo simple imprisonment for a period of one month and to pay a sum of Rs.15,000/- to the complainant as compensation under section 357(3), in default, he is directed to undergo simple imprisonment for a further period of one month. Aggrieved by the above order of Crl.R.P. No.2474/10 -:3:- conviction and sentence, though the revision petitioner- accused preferred an appeal, by judgment dated 31.5.2010 in Crl.A.No.343/2007, the court of Sessions Judge, Thiruvananthapuram, confirmed the conviction of the revision petitioner and modified the sentence by reducing the imprisonment to simple imprisonment till rising of the court and also directed to pay the cheque amount of Rs.15,000/- as compensation to the complainant and the default sentence ordered by the trial court 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. The courts below found that the cheque in question was issued towards the discharge of a liability of the revision petitioner that due to the complainant. I find no reason to interfere with the above concurrent findings of the courts below. As this court is not inclined to interfere with the findings of 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 compensation amount fixed by the courts below, which Crl.R.P. No.2474/10 -:4:- according to me is a genuine one and the said request 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 . Thus while confirming the sentence of imprisonment as modified and fixed by the lower appellate court, the revision petitioner is directed to pay a sum of Rs.15,000/- as compensation under section 357(3) Cr.P.C to the complainant within three months from today. If there is any default in paying the amount within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for a period of 2 months. Accordingly, the revision petitioner is directed to appear before the trial court on 15th November, 2010 to receive the sentence of imprisonment and to pay the compensation amount as directed above. In case of 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 his presence and to execute the sentence. Crl.R.P. No.2474/10 -:5:- Execution of warrant, if any, pending against the revision petitioner shall be deferred till 15.11.2010. V.K.MOHANAN, JUDGE kvm/-