IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 3RD SEPTEMBER 2010 / 12TH BHADRA 1932 Crl.Rev.Pet.No. 2620 of 2010() --------------------------------------- CRA.118/2009 of SESSIONS COURT, PALAKKAD DIVISION. STC.649/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT, CHITTUR .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED :- ------------------------------------------------------------------ JAYAPRAKASH, S/O.KRISHNAN, THOTTASSERI VEEDU, NALLEPPILLY, CHITTUR, PALAKKAD. BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENT(S)/RESPONDENTS/COMPLAINANT&NON-PARTY :- ------------------------------------------------------------------------------------------- 1. K.VENKITASUBRAMANIAN, S/O.K.N.KAILAS IYER, KAILASATHIL, KALLANKADU, NALLEPPILLY P.O., CHITTUR, PALAKKAD-678 553. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.SUMANGALA P.N. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ----------------------------- Crl.R.P.No.2620 of 2010 --------------------------------- Dated this the 3rd day of September 2010 O R D E R The accused in a prosecution for an offence u/s.138 of the Negotiable Instruments Act is the revision petitioner, as he is aggrieved by the order of conviction and sentence imposed by the courts below. 2. The case of the complainant is that the accused/revision petitioner borrowed a sum of Rs.50,000/- from the complainant and towards the discharge of the debt due to the complainant, he issued a cheque dated 15.1.2007 for an amount of Rs.50,000/-, which when presented for encashment dishonoured, as there was no sufficient fund in the account maintained by the accused and the cheque amount was not repaid inspite of a formal demand notice and thus the revision petitioner has committed the offence Crl.R.P.No.2620 of 2010 -: 2 :- punishable u/s.138 of the Negotiable Instruments Act. With the said allegation, the complainant approached the Judicial First Class Magistrate, Chittur by filing a formal complaint, upon which cognizance was taken u/s.138 of the Negotiable Instruments Act and instituted S.T.No.649/2007. During the trial of the case, the complainant himself was examined as PW1, and produced Exts.P1 to P5 documents. No evidence from the side of the defence. 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 found that, the complainant has established the case against the accused/revision petitioner and consequently held that the accused is guilty and thus convicted him u/s.138 of the Negotiable Instruments Act. On such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment for a period of 3 months and also ordered to pay a sum of Rs.55,000/- as compensation to the complainant Crl.R.P.No.2620 of 2010 -: 3 :- u/s.357(3) of Cr.P.C. and the default sentence is fixed as 1 month simple imprisonment. 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 27.4.2010 in Crl.A.No.118/2009, the Court of Sessions Judge, Palakkad allowed the appeal only in part and while confirming the conviction of the revision petitioner u/s.138 of the Negotiable Instruments Act, the sentence of imprisonment has set aside and he is sentenced to pay a fine of Rs.60,000/- and the default sentence is fixed as two months simple imprisonment. It is also ordered that on realization of the fine amount, the entire amount shall be paid to the complainant as compensation u/s.357(1) of Cr.P.C. It is the above conviction and sentence are challenged in this revision petition. 4. I have heard the learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. 5. As this court is not inclined to interfere with the order of conviction recorded by the courts below, the learned Crl.R.P.No.2620 of 2010 -: 4 :- counsel for the revision petitioner submitted that, a breathing time may be granted to the revision petitioner to pay the fine amount. Having regard to the facts and circumstances involved in the case, especially the cheque in question pertaining to the year 2007, while granting some time to pay the fine, the fine amount can be enhanced slightly. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner u/s.138 of the Negotiable Instruments Act as recorded by the courts below. Accordingly, the sentence of fine imposed by the lower appellate court is enhanced and the revision petitioner is sentenced to pay a fine of Rs.65,000/- within three months from today and in case any default in paying the fine amount, the revision petitioner is directed to undergo simple imprisonment for a period of three months. Accordingly, the revision petitioner is directed to deposit a sum of Rs.65,000/- being the fine amount on or before 3rd December, 2010. If the fine amount is realized, a sum of Rs.62,500/- shall be paid to the complainant as compensation u/s.357(1)(b) of Cr.P.C. Crl.R.P.No.2620 of 2010 -: 5 :- and the remaining amount shall be paid to the State Exchequer. In case, any failure on the part of the revision petitioner to pay the amount within the stipulated time, the trial court is free to take coercive steps to execute the sentence and to realize the fine amount. The coercive steps, if any, pending against the revision petitioner shall be deferred till 3.12.2010. Criminal Revision Petition is disposed of accordingly. V.K.MOHANAN, JUDGE. Jvt