IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 16TH JUNE 2010 / 26TH JYAISTHA 1932 Crl.Rev.Pet.No. 1821 of 2010() ------------------------------ CRA.39/2004 of SESSIONS COURT, THALASSERY CC.74/2002 of CHIEF JUDICIAL MAGISTRATE COURT, THALASSERY .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED :- ------------------------------------------------------------------- A.V.PRAMOD,S/O.GOVINDAN, AROKKAL, VALAPPIL HOUSE,CHELORA AMSOM DESOM, P.O.VARAM,KANNUR. BY ADV. SRI.M.A.KHADIRKUNJU SRI.K.H.ABDUL SAMAD (CHAVAKKAD) RESPONDENT(S)/1ST RESPONDENT-COMPLAINANT/ 2ND RESPONDENT :- --------------------------------------------------------------------------- 1. M.V.MOHANAN,S/O.DAMODARAN, THEMANAM VEEDU,NEAR KUTTIYERI, THALIPARAMBA P.O.,KANNUR. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.C.K.SREEJITH R2 BY PUBLIC PROSECUTOR MR.M.R.VENUGOPAL THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt V.K.MOHANAN, J. ----------------------------- Crl.R.P.No.1821 of 2010 --------------------------------- Dated this the 16th day of June 2010 O R D E R This revision petition is preferred by the accused in a prosecution for the offence punishable under Sec.138 of the Negotiable Instrument Act. 2. The case of the complainant is that a cheque issued by the revision petitioner for a sum of Rs.40,000/- was dishonoured when the same was presented for encashment. According to the complainant, the said cheque was issued towards the discharge of liability due to the complainant as the revision petitioner/accused borrowed a sum of Rs.40,000/- from him. 3. The trial court as well as the lower appellate court has considered the case of the accused elaborately and finally found that the complainant has established his Crl.R.P.No.1821 of 2010 : 2 : case against the revision petitioner. As there is no serious challenge against the case of the complainant, the trial court has found that the revision petitioner is guilty under Sec.138 of the N.I.Act and sentenced him to undergo simple imprisonment for two months and to pay a fine of Rs.45,000/- and also directed that out of the fine amount, Rs.43,000/- shall be paid to the complainant as compensation under Sec.357(1) of Cr.P.C. and the default sentence was fixed as one month simple imprisonment. Though an appeal was filed against the above conviction and sentence, the same was dismissed by the Court of Sessions, Thalassery by its judgment dated 27.12.2008 in Crl.A.No.39/2004. 4. The trial court as well as the lower appellate court has elaborately consider the entire facts and circumstances of the case and the arguments advanced by the contesting parties. It is on the basis of the above discussion, the courts below concurrently found that the revision Crl.R.P.No.1821 of 2010 : 3 : petitioner/accused is guilty under Sec.138 of the N.I.Act. Therefore, I find no reason to interfere with such concurrent finding. 5. The learned counsel for the revision petitioner submitted that a breathing time may be granted to the petitioner to deposit the fine amount and also submitted that a lenient view may be taken in the matter of sentence. 6. Considering the facts and circumstances of the case, I am of the view that the above submission can be considered favourably but subject to other material facts and circumstances included in the case. 7. Admittedly the cheque in question is dated 15.10.2001 for an amount of Rs.40,000/-. As per the records, it is found that a sum of Rs.40,000/- which belonging to the complainant is with the revision petitioner for the last 9 years. In the light of the decision of the Apex Court reported in Damodar.S.Prabhu v. Sayed Babalal.H [J.T. 2010(4) SC 457] and consider the facts which referred Crl.R.P.No.1821 of 2010 : 4 : above, I am of the view that the sentence of imprisonment imposed against the revision petitioner can be reduced but the amount of compensation fixed by the courts below can be enhanced to the tune of Rs.50,000/-. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner under Sec.138 of the N.I.Act and the revision petitioner is sentenced to undergo imprisonment till the rising of the court. He is also sentenced to pay a fine of Rs.50,000/- in default, he is directed to undergo simple imprisonment for six months and in case of realization of the fine amount a sum of Rs.47,500/- shall be paid to the complainant under Sec.357(1)(b) of Cr.P.C. Accordingly, the revision petitioner is directed to appear before the trial court on 15th September, 2010 to receive the sentence of imprisonment and to deposit the fine amount. In case of any failure on the part of the revision petitioner in appearing before the trial court as directed above and making the deposit of fine Crl.R.P.No.1821 of 2010 : 5 : amount, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence. V.K.MOHANAN, JUDGE. Jvt