IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 3RD AUGUST 2010 / 12TH SRAVANA 1932 Crl.Rev.Pet.No. 1268 of 2009() ------------------------------ CRA.857/2007 of ADDL.SESSIONS COURT (ADHOC)-IV, TRIVANDRUM ST.371/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT-V, TRIVANDRUM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- SOJA S.MANOJ, K.P.-V/57-A, MYNAKAM, TV STATION ROAD, KUDAPPANAKKUNNU, PEROORKADA, THIRUVANANTHAPURAM. BY ADV. SRI.M.SREEKUMAR RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. KOSHY DNIEL, S/O.D.K.DNIEL, N.C.C.ROAD, BHAGAVATHY NAGAR, AMBALAKUKKU, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.MOHAN VARUGHESE FOR R1 SRI.AJAYA KUMAR. G FOR R1 PUBLIC PROSECUTOR SRI. C.M. NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K. MOHANAN, J ---------------------- Crl.R.P.No.1268 OF 2009 ----------------------------------- Dated this the 3rd day of August, 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 the accused/revision petitioner, towards the discharge of a debt due to the complainant, issued a cheque dated 25.8.2005 for a sum of Rs.2,00,000/-, which when presented for encashment dishonoured, due to the reason that there was no sufficient fund in the account maintained by the accused and the cheque amount was not repaid in spite of a formal demand notice and thus the revision petitioner has committed the offence punishable under section 138 of Negotiable Instruments Act. With the said allegation, the complainant approached The Chief Judicial Magistrate Court, Thiruvananthapuram, wherein the case was taken on file as S.T. No.2028/2005 and subsequently it was made over to Judicial First Class Magistrate Court-V (special court for Crl.R.P. No.1268/09 2 mark list cases), Thiruvananthapuram, wherein the case is renumbered as ST.No.371/2005 by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable instruments Act. During the trial of the case, complainant himself was examined as PW1 and Exts.P1 to P7 were marked. No evidence is adduced from the side of 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 her debt due to the complainant. Thus accordingly, the court held 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 accused/revision petitioner to undergo simple imprisonment for six months and also sentenced to pay fine of Rs.2,00,000/-. The default sentence is fixed as 15 days imprisonment. It is also ordered that if the fine amount is realised, the same shall be given to the complainant as compensation u/s.357(1) of Cr.P.C 3. Though an appeal was filed by the revision petitioner/accused challenging the amount, conviction and sentence, by judgment dated 26.2.2009 in Criminal Appeal Crl.R.P. No.1268/09 3 No.857/07, the court of Additional Sessions Judge, Fast Track (Adhoc) No.IV, Thiruvananthapuram allowed the appeal only in part. Thus while confirming the conviction, the sentence is modified and reduced the same to simple imprisonment for one month with fine of Rs.2,00,000/- and in default of payment of fine amount, revision petitioner is directed to undergo simple imprisonment for a further period of 15 days. It is also ordered that if fine amount is realised, the same shall be given to the complainant as compensation u/s.357(1)(6) of Cr.P.C. It is the above conviction and sentence challenged in this revision petition. 4. I have head the learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. 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. The counsel for the revision petitioner further submitted that the courts below has committed wrong in convicting the revision petitioner. But no case is made out to interfere with the concurrent findings of the trial court as well as the lower appellate court. Crl.R.P. No.1268/09 4 6. Learned counsel for the revision petitioner submitted that Ext.P3 cheque was given as security. But the said cheque was not returned, though the complainant had obtained Ext.P1 promissory note as evidenced by Ext.P2 receipt for the same. Thus according to the learned counsel there is no consideration for Ext.P3 cheque. The above contention is purely based on evidence and facts which already considered by the trial court as well as lower appellate court. It was incumbent upon the accused to demand back the promissory note even if the complainant insisted for Ext.P3 cheque. No timely action was taken by the accused before issuing Ext.P3 cheque. Therefore the contention raised by learned counsel for revision petitioner deserve no consideration. In the result, there is no merit in the revision petition and accordingly the same is dismissed. V.K. MOHANAN, JUDGE. Sou.