IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 11TH OCTOBER 2010 / 19TH ASWINA 1932 Crl.Rev.Pet.No. 2933 of 2010() ------------------------------ CRA.105/2010 of ADDL. SESSIONS COURT (ADHOC)-II, PALAKKAD ST.1954/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PALAKKAD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ----------------------------------------------------------------- P.P.MUKUNDAN, S/O.LATE M.K.RAMAN, MUKTHI, THIRUVANGOOR P.O., KOZHIKODE. BY ADVS. SRI.M.ASOKAN SRI.DEVAPRASANTH.P.J. RESPONDENT(S): RESPONDENT/COMPLAINANT AND STATE --------------------------------------------------------------------------------------- 1. M/S.SREE LAKSHMI KURIES & LOANS PRIVATE LIMITED, SREE LAKSHMI TOWERS, EAST FORT MAIDAN, PALAKKAD. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY PUBLIC PROSECUTOR SRI.V.TEKCHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2933 of 2010 ------------------------------- Dated this the 11th day of October, 2010. O R D E R The accused in a prosecution for an offence u/s.138 of 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, one M.Chandrasekharan, was a subscriber in chitty No.C/14, for sala of Rs.50,000/-, and the accused was a guaranteer. According to the complainant, the said subscriber, bid the kuri for Rs.35,000/- and the bid amount was paid to the subscriber but there was default in paying the subscription amount and the total amount was finally quantified as Rs.36,500/-, for which the accused issued a cheque dated 10.5.2007 for a sum of Rs.36,500/-, 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 2 Crl. R.P.No.2933 of 2010 and thus the revision petitioner has committed the offence punishable u/s.138 of Negotiable Instruments Act. With the said allegation, the complainant approached the Judl. First Class Magistrate Court-I, Palakkad, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.1954/08. During the trial of the case, PW1, the complainant himself was examined from the side of the complainant and Exts.P1 to P10 were marked. From the side of the defence, Ext.D1 was produced and marked and no oral evidence was adduced. 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 found that the accused is guilty and thus convicted him u/s.138 of Negotiable Instruments Act. On such conviction, the trial court sentenced the revision 3 Crl. R.P.No.2933 of 2010 petitioner to undergo simple imprisonment for 3 months and also ordered the revision petitioner to pay a sum of Rs.36,500/- to the complainant as compensation u/s.357(3) of Cr.P.C., failing which the revision petitioner was directed to undergo simple imprisonment for 1 month. 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 13.8.2010 in Crl.A.105/10, the Court of Addl. Sessions Judge, Fast Track Court-II, Palakkad, allowed the appeal only in part, and thus while confirming the conviction, the order to pay compensation and the default sentence, the sentence of imprisonment imposed against the accused by the trial court is reduced to one day simple imprisonment ie., till the rising of the court. It is the above conviction and sentence 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. 4 Crl. R.P.No.2933 of 2010 5. Reiterating the stand taken by the accused/revision petitioner during the trial and appeal, submitted that the complainant has not established the transaction and also the execution and issuance of the cheque. But no case is made out to interfere with the concurrent findings of the trial court as well as the lower appellate court. Therefore, I find no merit in the revision petition and accordingly the conviction recorded by the courts below against the revision petitioner u/s.138 of Negotiable Instruments Act, is approved. 6. As this court is not inclined to interfere with the conviction recorded by the courts below, the learned counsel for the revision petitioner submitted that, some breathing time may be granted 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 other facts and circumstances involved in the case. In the result, this revision petition is disposed of confirming the conviction against the revision petitioner u/s.138 of 5 Crl. R.P.No.2933 of 2010 Negotiable Instruments Act as recorded by the courts below. Accordingly, while confirming the conviction, the sentence of imprisonment as fixed by the appellate court and while confirming the direction to pay compensation amount and the default sentence, the revision petitioner is granted 45 days time from today to pay the compensation amount and it is made clear that the default sentence fixed by the appellate court will be attracted only in case making any default on the part of the revision petitioner in paying the compensation amount within the period fixed by this court. Accordingly, the revision petitioner is directed to appear before the trial court on 25.11.2010, to receive the sentence of imprisonment and to pay the compensation amount as directed by this court. It is also made clear that the revision petitioner is free to make the payment either directly to the complainant or by remitting the same in the trial court, which ever subject to the satisfaction of the learned Magistrate of the trial court. In case, any failure on the part of the revision petitioner in appearing before the court below as 6 Crl. R.P.No.2933 of 2010 directed above and paying the compensation amount, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence awarded against the revision petitioner. The execution of warrant if any, pending against the revision petitioner shall be deferred till 25.11.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/