IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 5TH JULY 2010 / 14TH ASHADHA 1932 Crl.Rev.Pet.No. 1935 of 2010() ------------------------------ CRA.605/2009 of ADDL.SESSIONS COURT (ADHOC II) ERNAKULAM ST.235/2007 of JUDL. MAGISTRATE OF FIRST CLASS-III, KOCHI .................... PETITIONER(S): APPELLANT/ACCUSED: ----------------------------------------------------------- THOMAS JOSEPH S/O.K.C.JOSEPH, AGED 58 YEARS, KUNNAPPILLY HOUSE, GOKULAM, CONVENT JUNCTION, MANJUMMEL, ERNAKULAM, PIN 683 501. BY ADV. SRI.JOHN JOSEPH(ROY) RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE: ----------------------------------------------------------------------------------------- 1. M/S.STERLING ENTERPRISES, 43/996, PALAPARAMBU ROAD, PACHALAM P.O., ERNAKULAM, REPRESENTED BY ITS MANAGING PARTNER MR.ANTONY, AGED 44. 2. STATE OF KERALA, REPRESENTED THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY ADV. SRI. VENUGOPAL M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 05/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ---------------------------------------- Crl.R.P. No. 1935 2010 ---------------------------------------- Dated the 5th Day of July 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 an amount of Rs.50,000/- was due to the complainant from the accused and towards the discharge of the said liability, the accused issued Ext.P2 cheque dated 25.4.2006 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 issued by him. With the said allegation, the complainant approached the Judicial First Class Magistrate-III, Kochi by filing a formal complaint upon which cognizance was taken under Crl.R.P.No.1935/10 -:2:- Section 138 of the N.I.Act and instituted S.T.No.235/2007. 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, the accused was examined as DW1 and produced Ext.D1 series statement of accounts and balance sheet for the period 2001 to 2006. After evaluation of the evidence and the materials on record, the trial court has found that Ext.P2 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 3 months and to pay a fine of Rs.1,00,000/-, in default, he is directed to undergo simple imprisonment for a further period of 3 months. It is Crl.R.P.No.1935/10 -:3:- also ordered that on realisation of the fine amount, the same shall be paid as compensation to the complainant under section 357(1) Cr.P.C. Aggrieved by the above order of conviction and sentence, though the revision petitioner- accused preferred an appeal, by judgment dated 7.12.2009 in Crl.A.No.605/2009/, the court of Addl. Sessions Judge, (Adhoc-II), Ernakulam, confirmed the conviction of the revision petitioner and modified the sentence by reducing the imprisonment to simple imprisonment till rising of the court and also the fine amount reduced to Rs.50,000/- which is equal to the cheque amount. The default sentence is also reduced to 2 months simple imprisonment. It is the above judgments of the trial court as well as the lower appellate court challenged in this Crl.R.P. 3. 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 fine amount. 4. The cheque in question is dated 25.4.2006 for an Crl.R.P.No.1935/10 -:4:- amount of Rs.50,000/- and thus as per the record and finding of the courts below, which upheld by this court, a sum of Rs.50,000/- is with the revision petitioner for the last four years and considering the legal position as per the decision of the Apex Court in Damodar S.Prabhu v. Sayed Babalal H (J.T.2010 (4) SC 457), while granting some time to the revision petitioner, the amount of fine can be enhanced to the tune of Rs.55,000/-. 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 . Thus while maintaining the sentence of imprisonment as ordered by the lower appellate court, the fine amount is modified and, accordingly, the revision petitioner is sentenced to pay a fine of Rs.55,000/- and the default sentence is also enhanced and fixed as simple imprisonment for three months. On realisation of the the fine amount, the entire amount shall be paid to the complainant as compensation under section 357(1)(b) Cr.P.C. Accordingly the revision petitioner is granted three months Crl.R.P.No.1935/10 -:5:- time to deposit the fine amount and to receive the sentence of imprisonment. Accordingly, the revision petitioner is directed to appear before the trial court on 5th October, 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 sentence and for realisation of the amount. This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- Crl.R.P.No.1935/10 -:6:- O.P.No. JUDGMENT Dated:..