IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 28TH SEPTEMBER 2010 / 6TH ASWINA 1932 Crl.Rev.Pet.No. 2298 of 2010() ------------------------------ CRA.96/2009 of ADDL. SESSIONS COURT, (ADHOC-1), PALAKKAD ST.472/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I,OTTAPPALAM .................... REVN. PETITIONER/ APPELLANT/ACCUSED -------------------------------------- P.R.RAMAKRISHNAN,S/O.P.R.RAMANANDAN, DWARAKA,KILLIKKAVU ROAD, KANNIYAMPURAM AMSOM DESOM,OTTAPPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) RESPONDENT: RESPONDENTS/COMPLAINANT AND STATE OF KERALA ---------------------------------------------------------- 1. N.RAJAN,S/O.MADHAVAN MOOTHAN, KANCHANA NIVAS, OTTAPALM TALUK, PALAKKAD DISTRICT 679 101. 2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM-31. R1 BY ADVS. M/S. P.VIJAYA BHANU P.M.RAFIQ & SMT.P.MAYA PUBLIC PROSECUTOR SMT. SUMANGALA P.N. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------------------ Crl.R.P. No. 2298 of 2010 ---------------------------------------- Dated the 28th Day of September, 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 the accused borrowed an amount of Rs.50,000/- from the complainant and towards the discharge of the said liability, the accused issued a post dated cheque dated 20.9.2003 for Rs.1,90,000/- which when presented for encashment, dishonoured stating that 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, Ottappalam by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted S.T.No.472/2004. 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 P5 as documentary evidence. From the side of the defence, no evidence, either oral or documentary was CRL.R.P 2298/10 -:2:- 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 three months and to pay fine of Rs.10,000/-. The default sentence is fixed as simple imprisonment for a period of one month. It was also ordered that on realisation of the fine amount, the entire amount shall be paid to the complainant as compensation under section 357(1)(b) Cr.P.C. 3. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 30.5.2010 in Crl.A.No.96/2009, the court of Addl. Sessions Judge, (Adhoc-I) Palakkad, dismissed the appeal confirming the conviction but modified the sentence. Accordingly the revision petitioner is directed to undergo simple imprisonment CRL.R.P 2298/10 -:3:- till rising of the court. Instead of fine, the appellate court directed the revision petitioner to pay compensation of Rs.1,90,000/-. It is the above judgments of the trial court as well as the lower appellate court challenged in this Crl.R.P. 4. Reiterating the contention taken by the defence during the trial and appellate stages, the learned counsel submitted that the complainant has not established the transaction, execution and issuance of the cheque and therefore, the courts below are absolutely wrong in convicting the revision petitioner-accused imposing sentence against him. The trial court as well as the lower appellate court has concurrently found in favour of the complainant and against the revision petitioner-accused. Though the revision petitioner is heard elaborately, nothing is brought out to take a different view to interfere with the concurrent findings of the courts below. All the contentions are based upon the facts and evidence on record which were elaborately considered by the courts below. Therefore, I find no reason to interfere with such concurrent finding of the courts below and accordingly, the conviction recorded by the courts below is confirmed. 5. As this court is not inclined to interfere with the conviction, counsel for the revision petitioner submitted that four CRL.R.P 2298/10 -:4:- months time may be granted to the revision petitioner to pay the compensation amount, which submission, according to me, deserves consideration. In the result, this Crl.R.P is disposed of confirming the conviction recorded by the courts below for the offence under section 138 of the N.I.Act. The sentence of imprisonment as modified by the appellate court and the order to pay the compensation of Rs.1,90,000/- to the complainant are also confirmed. Thus while maintaining the direction to pay compensation, the revision petitioner is granted four months time from today to pay the compensation amount and the default sentence fixed by the appellate court will be attracted only if there is any default on the part of the revision petitioner in paying the compensation amount within four months from today. Accordingly the revision petitioner is directed to appear before the trial court on 28th January, 2011 to receive the sentence and to pay the compensation amount. If there is 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 and for realisation of the amount. It is made clear that CRL.R.P 2298/10 -:5:- the revision petitioner is free to pay the compensation amount either directly to the complainant or by remitting the same in the trial court whichever subject to the satisfaction of the learned Magistrate. Coercive steps, if any, pending against the revision petitioner shall be deferred till 28.1.2011. This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/-