IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 22ND SEPTEMBER 2010 / 31ST BHADRA 1932 Crl.Rev.Pet.No. 2719 of 2010(D) -------------------------------------------- [CRL.A.NO.352/2005 OF ADDL. SESSIONS COURT (ADHOC-I), KOLLAM, CC.1886/2000 OF THE JUDL.MAGISTRATE OF FIRST CLASS COURT-II, KOLLAM] .................... PETITIONER/APPELLANT/ACCUSED: ----------------------------------------------------- B.JOSHWA, ZERIN FASHION, PANCHAYATH MARKET BUILDING, KAVANAD, KOLLAM. BY ADVS. SRI.V.V.RAJA, SRI.M.T.SURESHKUMAR. RESPONDENT/RESPONDENT/COMPLAINANT AND STATE: ------------------------------------------------------------------------------------ 1. H.ANWAR, HANEEFAZIL, MAIN ROAD, KAVANAD P.O., KOLLAM PIN-691 001. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. V. TEK CHAND. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2719 of 2010 ------------------------------- Dated this the 22nd day of September, 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 the amount due to the complainant the accused issued a cheque dated 29.8.1999 for a sum 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 punishable u/s.138 of Negotiable Instruments Act. With the said allegation, the complainant approached the Judl. First Class Magistrate Court-II, Kollam, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted 2 Crl. R.P.No.2719 of 2010 C.C.No.1886/00. During the trial of the case, the complainant himself was mounted to the box and gave evidence as PW1 and Exts.P1 to P6 were marked, from the side of the complainant. From the side of the defence, DW1 was examined and Exts.D1 and D2 were also produced and marked. 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 petitioner to undergo simple imprisonment for 5 months and directed to pay a fine of Rs.5,000/- and the default sentence was fixed as 1 month simple imprisonment. It is also ordered that if the fine amount is recovered, the same shall be given to the complainant as compensation u/s.357(1)(b) of Cr.P.C. 3 Crl. R.P.No.2719 of 2010 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 30.3.2010 in Crl.A.352/05, the Court of Addl. District & Sessions Judge (Ad hoc)-I, Kollam, dismissed the appeal, but subject to certain modification with respect to the sentence. Thus the appellate court while confirming the conviction, the revision petitioner is sentenced to undergo simple imprisonment till the rising of the court and by setting aside the order to pay fine, he was directed to pay a compensation of Rs.50,000/- to the complainant. 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 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 4 Crl. R.P.No.2719 of 2010 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 order of conviction recorded by the courts below, the counsel for the revision petitioner submitted that, some breathing time may be granted to the petitioner 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 requires consideration. 7. In the present case, the cheque in question is dated 29.8.1999, for an amount of Rs.50,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.50,000/-, which belonged to the complainant is with the revision petitioner for the last 11 years. Therefore, only one month time can be granted to pay the 5 Crl. R.P.No.2719 of 2010 compensation amount. 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 courts below. Accordingly, while confirming the sentence of imprisonment as modified and fixed by the appellate court and also while maintaining the direction to pay the compensation amount of Rs.50,000/- to the complainant, the revision petitioner is granted one month time from today to pay the compensation amount and the default sentence fixed by the trial court and approved by the appellate court will be attracted only if there is any failure on the part of the revision petitioner to pay the compensation amount within the stipulated period. Accordingly, the revision petitioner is directed to appear before the trial court on 22.10.2010, to receive the sentence of imprisonment and to pay the compensation amount, as fixed by the appellate court and approved by this court. In case any failure on the part of the revision petitioner in appearing before the court below as directed above and in paying 6 Crl. R.P.No.2719 of 2010 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. Execution of warrant if any, pending against the revision petitioner shall be deferred till 22.10.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/