IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 11TH OCTOBER 2010 / 19TH ASWINA 1932 Crl.Rev.Pet.No. 2961 of 2010() ------------------------------ CRA.300/2009 of SESSIONS COURT, KOTTAYAM ST.9/2009 of JUDL. FIRST CLASS MAGISTRATE – III, KANJIRAPPALLY .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED :- ------------------------------------------------------------------ SUSAN JOSEPH, VETTIMALA HOUSE, VAZHOOR EAST P.O.,686504 KOTTTAYAM DISTRICT BY ADV. SRI.SURIN GEORGE IPE RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE :- ------------------------------------------------------------------------------------- 1. K.JAYAKUMAR,KURINJIYIL HOUSE, CHIRAKKADAVU CENTRE P.O., CHIRAKKADAVU-686519 2. STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PUBLIC PROSECUTOR MR.V.TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt V.K.MOHANAN, J. ------------------------------- Crl.R.P.No.2961 of 2010 ---------------------------------- Dated this the 11th day of October, 2010. O R D E R The challenge in this revision petition is against the conviction and sentence imposed against the revision petitioner, who is the accused in a prosecution for the offence punishable under Sec.138 of the Negotiable Instruments Act. 2. The case of the complainant is that the accused/revision petitioner borrowed a sum of Rs.1,50,000/- from the complainant and towards the discharge of the debt due to the complainant, she issued a cheque dated 10.4.2008 for a sum of Rs.1,50,000/-, 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 the Negotiable Instruments Act. With the said allegation, the Crl.R.P.No.2961 of 2010 -: 2 :- complainant approached the Judicial First Class Magistrate-III, Kanjirappally, by filing a formal complaint, upon which cognizance was taken u/s.138 of the Negotiable Instruments Act and instituted S.T.No.9/2009. During the trial of the case, PW1 was examined from the side of the complainant and Exts.P1 to P9 were marked. From the side of the defence, DW1 was examined and Exts.D1 & D2 were 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 her debt due to the complainant. Thus accordingly the court found that, the complainant has established the case against the accused/revision petitioner and consequently held that the accused is guilty and thus convicted her u/s.138 of the Negotiable Instruments Act. On such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment for 6 months and to pay a compensation of Rs.1,50,000/- u/s.357(3) of Cr.P.C. and the default sentence is fixed as two months simple imprisonment. 3. Though an appeal was filed, at the instance of the Crl.R.P.No.2961 of 2010 -: 3 :- revision petitioner/accused, by judgment dated 19.7.2010 in Crl.A.No.300/2009, the Court of Sessions Judge, Kottayam allowed the appeal only in part, while confirming the conviction of the revision petitioner u/s.138 of the Negotiable Instruments Act, modified and reduced the sentence of imprisonment. The order to pay compensation and default sentence were also confirmed. It is the above conviction and sentence are 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 this revision petition and accordingly the conviction recorded by the courts below against the revision petitioner u/s.138 of the Negotiable Instruments Act, is approved. Crl.R.P.No.2961 of 2010 -: 4 :- 6. As this court is not inclined to interfere with the order of conviction recorded by the courts below, the learned counsel for the revision petitioner submitted that the revision petitioner requires some time to pay the compensation amount and since the revision petitioner is also involved in another similar case, maximum time may be granted to pay the compensation amount. 7. In the light of the facts and circumstances involved in the case especially that the revision petitioner is a lady, I am of the view that the above submission of the learned counsel can be considered positively. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner under Sec.138 of the Negotiable Instruments Act as recorded by the court below and while confirming the sentence of imprisonment as ordered by the appellate court and the direction to pay compensation and the default sentence, the revision petitioner is granted 45 days time to pay the compensation amount and the default sentence fixed by the appellate court will be attracted only in case of failure on the part of the revision petitioner in paying the compensation amount within 45 days from today. Crl.R.P.No.2961 of 2010 -: 5 :- Accordingly, the revision petitioner is directed to appear before the trial court on 18th November, 2010 to receive the sentence of imprisonment and to pay the compensation amount. If there is any failure on the part of the revision petitioner in appearing before the court below and paying the compensation amount the trial court is free to take coercive steps for execution of the sentence and for realization of the compensation amount. The coercive steps if any, pending against the revision petitioner shall be deferred till 18.11.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. Jvt