IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 15TH SEPTEMBER 2010 / 24TH BHADRA 1932 Crl.Rev.Pet.No. 2544 of 2010() ---------------------------- CRA.582/2009 of ADDL.SESSIONS COURT (ADHOC-I), ERNAKULAM CC.788/2007 OF JUDICIAL IST CLASS MAGISTRATE COURT, KOTHAMANGALAM ...................................................... REVISION PETITIONER / APPELLANT / ACCUSED : --------------------------------------------------------------------- RAJU BHASKARAN, AGED 46 YEARS, VIPPATTU HOUSE, PINDIMANA P.O., KOTHAMANGALAM VILLAGE. BY ADV. SRI. P.T. JOSE RESPONDENTS / RESPONDENTS / COMPLAINANT : ----------------------------------------------------------------------- 1. ELDHOSE ELIAS, AGED ABOUT 41 YEARS, MAMMOOTTIL HOUSE, VENDUVAZHY, KOTHAMANGALAM VILLAGE. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT. SUMANGALA P.N. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn V.K.MOHANAN, J. ---------------------------------------- Crl.R.P. No. 2544 of 2010 ---------------------------------------- Dated the 15th 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 a sum of Rs.2,00,000/- from him and towards the discharge of the said debt, the accused issued Ext.P1 cheque dated 13.8.2007 for Rs.2,00,000/- which when presented for encashment, dishonoured as there was no sufficient fund in the account maintained by the accused 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 court of Judicial First Class Magistrate, Kothamangalam by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted C.C.NO.788/2007. During the course of trial, the complainant himself mounted to the box and adduced oral evidence as CRL.R.P. 2544/10 :-2-: PW1. He has also produced Exts.P1 to P6 as documentary evidence. From the side of the defence, DW1 was examined. No evidence, either oral or documentary was 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 four months and to pay a fine of Rs.2,00,000/-. The default sentence is fixed as two months simple imprisonment. It is also ordered that on realisation of the fine amount, the same shall be given to the complainant as compensation under section 357(1)(b) Cr.P.C. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment CRL.R.P. 2544/10 :-3-: dated 27.5.2010 in Crl.A.No.582/2009, the court of Addl. Sessions Judge, (Adhoc-I), Ernakulam, dismissed the appeal confirming the conviction but modified and reduced the sentence directing the revision petitioner to undergo simple imprisonment till rising of the court and the sentence to pay fine is enhanced to Rs.2,05,000/-. With respect to the default sentence, no interference is made. Accordingly, the appellate court directed the revision petitioner to appear before the trial court on 31.8.2010. It is the above judgments of the trial court as well as the lower appellate court challenged in this Crl.R.P. 3. 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. CRL.R.P. 2544/10 :-4-: 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. As this court is not inclined to interfere with the conviction and sentence, the learned counsel for the revision petitioner submitted that a breathing time may be granted to the revision petitioner to pay the fine amount. 4. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered favourably. In the present case, the cheque in question is dated 13.8.2007. Thus, as per the findings of the courts below which approved by this Court, an amount of Rs.2 lakhs which belongs to the complainant is with the revision petitioner for the last 3 years. The appellate court has reduced the sentence of CRL.R.P. 2544/10 :-5-: imprisonment to one day simple imprisonment. Thus considering the above facts, I am of the view that while granting some time to pay the fine, the amount can be enhanced. In the result, this Crl.R.P is disposed of confirming the conviction of the revision petitioner under section 138 of the N.I.Act as recorded by the courts below. Accordingly, while confirming the sentence of imprisonment as modified by the appellate court, the amount directed to be paid as fine is enhanced to the tune of Rs.2,25,000, which shall be paid within three months from today. In case of any default in depositing the fine amount, the revision petitioner is directed to undergo simple imprisonment for a period of three months. Accordingly, the revision petitioner is directed to appear before the trial court on 15th December, 2010 to receive the sentence and to pay the fine 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 CRL.R.P. 2544/10 :-6-: sentence. On realisation of the fine amount, a sum of Rs.2,20,000/- (Rs.Two lakhs and twenty thousand only) shall be paid to the complainant as compensation under section 357(1)(b) Cr.P.C and the remaining amount shall be paid to the State Exchequer. Coercive steps if any pending against the revision petitioner shall be deferred till 15.12.2010. This Crl.R.P. is disposed of Accordingly. V.K.MOHANAN, JUDGE kvm/-