IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 22ND JUNE 2010 / 1ST ASHADHA 1932 Crl.Rev.Pet.No. 1880 of 2010() ------------------------------ CRA.148/2007 of II ADDL.SESSIONS COURT, KOLLAM CC.47/2007 of JUDICIAL FIRST CLASS MAGISTRATE-III, KOTTARAKKARA .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED :- ------------------------------------------------------------------- SOSAMMA.D, W/O.RAJAN DANIEL, PEEDIKAYIL PADINJATTATHIL, VALAKAM.P.O, ARACKAL VILLAGE, PATHANAPURAM TALUK. BY ADV. SRI.SHABU SREEDHARAN SRI.N.A.JOHN JACOB SRI.P.SANJAY SHENOI SRI.C.K.PRASAD RESPONDENT(S)/RESPONDENTS/STATE AND COMPLAINANT :- ------------------------------------------------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. K.V.SASIDHAR, S/O.VIDHYADHARAN PILLAI, ANUSHMA, ANDOOR.P.O, VALAKAM VILLAGE, KOTTARAKKARA TALUK – 691 532. PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt V.K.MOHANAN, J. ~~~~~~~~~~~~ Crl.R.P.No.1880 of 2010 ~~~~~~~~~~~~~~~~~ Dated this the 22nd day of June 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 a debt due to the complainant, issued a cheque dated 23.5.2005 for Rs.70,000/-, which when presented for encashment dishonoured 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 the Negotiable Instruments Act. With the said allegation, the complainant approached the Judicial First Class Magistrate Court-III, Kottarakara, by filing a formal complaint, upon which cognizance was taken u/s.138 of the Negotiable Instruments Crl.R.P.No.1880 of 2010 : 2 : Act and instituted C.C.No.47/2007. During the trial of the case, PW1 was examined from the side of the complainant and Exts.P1 to P6 were marked. No evidence either oral or documentary adduced from the side of the defence. 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 his case against the accused/revision petitioner and consequently found that the accused is guilty and thus convicted him u/s.138 of the Negotiable Instruments Act. On such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment for 15 days and also directed the revision petitioner to pay an amount of Rs.70,000/- as compensation to PW1 under Sec.357(3) of Cr.P.C. 3. In appeal, at the instance of the revision petitioner/ accused, by judgment dated 24.3.2010 in Crl.A.148/2007 of Crl.R.P.No.1880 of 2010 : 3 : the court of II Additional Sessions Judge, Kollam, while confirming the conviction modified the sentence. Accordingly, the revision petitioner is sentenced to pay a fine of Rs.70,000/- and also sentenced to undergo imprisonment till rising of the court and the default sentence is fixed as 5 days simple imprisonment. It is also ordered that on realization of the fine amount the same shall be paid to the complainant. It is the above order of 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 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 Crl.R.P.No.1880 of 2010 : 4 : recorded by the courts below against the revision petitioner u/s.138 of the Negotiable Instruments Act is confirmed. 6. The learned counsel submitted that a lenient view may be taken in the matter of fine amount and also submitted that some breathing time may be granted to the revision petitioner to pay the fine amount. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered favourably with slight modifications with respect to the fine 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 trial court as well as the lower appellate court. The sentence of imprisonment as modified, as per the direction of the lower appellate court, is confirmed and the revision petitioner is sentenced to pay a fine of Rs.75,500/- and in default in paying the amount, the revision petitioner is directed to undergo simple imprisonment for one month. The revision petitioner is directed to appear before the trial court to receive the Crl.R.P.No.1880 of 2010 : 5 : sentence and to deposit the fine amount on 22nd September, 2010. In case any failure on the part of the revision petitioner in appearing before the court below as directed above and in making the deposit 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 coercive steps if any taken against the revision petitioner shall be kept in abeyance till 22.9.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, JUDGE. Jvt