IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 19TH AUGUST 2010 / 28TH SRAVANA 1932 Crl.Rev.Pet.No. 2522 of 2010() ------------------------------ CRA.435/2009 of ADDL.SESSIONS COURT,-I, MAVELIKKARA ST.514/2008 of JUDICIAL MAGISTRATE OF FIRST CLASS-II,MAVELIKKARA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- JEFFRY POPPEN,PARAYIL BUILDING, CHARUMMOODU.P.O,CHARUMMOODU. BY ADV. SRI.P.B.SAHASRANAMAN RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE ------------------------------------------------ 1. VARGHESE PAPPACHAN,PUTHEN PURAYIL HOUSE, KARIMULAKKAL, KOMALLOOR-690 505. 2. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM-690 505. PUBLIC PROSECUTOR SMT.PUSHPALATHA.M.K. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN,J --------------------- Crl.R.P.No.2522 of 2010 ------------------------------------ Dated this the 19th day of August,2010 O R D E R The accused in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') approached this Court by preferring the above revision petition challenging his conviction and sentence, imposed as per judgments of the trial court as well as the lower appellate court. 2. The case of the respondent/complainant against the accused/revision petitioner is that towards the discharge of a debt due to the complainant, the accused issued a cheque dated 10.4.2008 for a sum of Rs.1,00,000/- which, when presented for encashment, was dishonoured for want of sufficient fund in the account maintained by the revision petitioner and the petitioner failed to pay the cheque amount, even though he was requested for the same by issuing a statutory notice. With the said allegation, the complainant approached the Judicial First Class Magistrate Court-II, Mavelikkara whereupon S.T.No.514/2008 was instituted taking cognizance for the offence under Section 138 of the N.I.Act. During the trial of the above case, the respondent/complainant adduced his evidence consisting of the Crl.R.P.No.2522 of 2010 2 documentary evidence such as Exts.P1 to P7 and the oral evidence of himself as PW1. No evidence either oral or documentary was adduced from the side of the defence. Ext.D1 was marked as defence Exhibit. 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 courts held that, the complainant has established the case against the revision petitioner/accused and consequently, found that the accused is guilty and thus, he is convicted under Section 138 of the N.I.Act. on such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment for 3 months u/s.138 of N.I.Act and he is directed to pay Rs.1,05,000/-to the complainant as compensation u/s.357(3) Cr.P.C. and failing which he is directed to undergo simple imprisonment for 4 months. 3. Though an appeal was filed against the above conviction and sentence, by the revision petitioner/accused, as per judgment dated 11.6.2010 in Crl.Appeal No.435/2009, the Court of Addl. Sessions Judge-I, Mavelikkara allowed the appeal Crl.R.P.No.2522 of 2010 3 only in part and thus, while confirming the conviction, the sentence of imprisonment is modified and reduced and accordingly, the revision petitioner is sentenced to undergo simple imprisonment till the rising of the court and to pay compensation as directed by the trial court. The default sentence is reduced from 4 months to 2 months simple imprisonment. 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. 5. Reiterating the stand taken by the defence during the trial as well as the appellate stage, the learned counsel for the revision petitioner submitted that the complainant has not established the transaction, execution and issuance of the cheque. The above submission is purely on the basis of the facts, evidence and materials on record which are already considered in detail by the trial court as well as the lower appellate court. The petitioner miserably failed to make out a case so as to interfere with such concurrent findings arrived on by the courts below. Therefore, the conviction recorded by the Crl.R.P.No.2522 of 2010 4 courts below is only required to be approved. I do so. 6. The learned counsel for the revision petitioner submitted that a breathing time may be granted to the revision petitioner to receive the sentence and to pay the amount ordered by the courts below. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered and one month time can be granted to the revision petitioner. 7. The learned counsel for the revision petitioner submitted that the revision petitioner already deposited a sum of Rs.9,000/- in the trial court in compliance with the condition imposed by the lower appellate court while suspending the execution of the sentence. If the said amount is deposited and retained in the trial court, the revision petitioner need to deposit only the balance amount towards the total compensation fixed by the court below. In the result, this revision petition is disposed of confirming the conviction against the revision petitioner u/s.138 of Negotiable Instruments Act as recorded by the trial court. Accordingly, the sentence of imprisonment, ordered by the lower appellate court and the direction to pay the compensation is also Crl.R.P.No.2522 of 2010 5 confirmed. Accordingly, the revision petitioner is granted 3 months time to pay the compensation and in case any default paying the amount within a stipulated time the revision petitioner is directed to undergo simple imprisonment for 2 months. Accordingly, the revision petitioner is directed to appear before the trial court on 16.11.2010 to receive the sentence and to pay the amount. In case any failure on the part of the revision petitioner in appearing before the court below as directed above and in making the payment of fine 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 referred till 16.11.2010 Criminal revision petition is disposed of accordingly. V.K.MOHANAN, JUDGE. pm