IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 19TH OCTOBER 2010 / 27TH ASWINA 1932 Crl.Rev.Pet.No. 3056 of 2010() ------------------------------------ CRA.76/2009 of ADDL.SESSIONS COURT (ADHOC)-II, KOTTAYAM ST.2130/2007 of JUDL. FIRST CLASS MAGISTRATE COURT-II (MOBILE), KOTTAYAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------ MARIAMMA THOMAS, W/O.THOMAS, BETHEL HOUSE, NEAR KAVUMPADI, MANARCADU.P.O., KOTTAYAM. BY ADV. SRI.M.P.MADHAVANKUTTY RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE -------------------------------------------------------------------- 1. JOJI JOHN, JOJI BHAVAN, CHUNGAM, KOTTAYAM. PIN-686 003. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.P.N.SUMANGALA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs/ V.K.MOHANAN, J. ------------------------------------------ Crl.R.P. No. 3056 of 2010 ---------------------------------------- Dated the 19th Day of October, 2010 ORDER This Revision Petition is preferred by the accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act, as she is aggrieved by the conviction and sentence imposed against her by the courts below. 2. According to the complainant, the accused borrowed a sum of Rs.50,000/- and issued a cheque dated 25.10.2004 for an amount of Rs.50,000/- which when presented for encashment was dishonoured for insufficient funds 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 Judicial First Class Magistrate-II, (Mobile), Kottayam, by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted ST Case No.2130/2007. 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 P6 as documentary evidence. CRRP 3056/10 -:2:- From the side of the defence, DW1 was examined and 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 imprisonment till the rising of the court and also sentenced to pay a fine of Rs.50,000/-. The default sentence is fixed as simple imprisonment for two months. It is also ordered that on realisation of the fine amount, the entire amount sill be given to the complainant as compensation under section 357(1)(b) of Cr.P.C. 3. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an CRRP 3056/10 -:3:- appeal, by judgment dated 30.4.2010 in Crl.A.No.76/2009, the court of Addl. District & Sessions Judge,(Adhoc)-II, Kottayam dismissed the appeal confirming the conviction and sentence. It is the above judgments of the trial court as well as the lower appellate court challenged in this Crl.R.P. 4. 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. 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 CRRP 3056/10 -:4:- courts below and accordingly, the conviction recorded by the courts below is confirmed. 5. As this court is not inclined to interfere with the order of conviction, the counsel submitted that a 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, and while granting some time to pay the fine, the amount can be enhanced slightly considering the fact that the cheque in question is dated 25.10.2004, and the said amount is with the revision petitioner for the last six years. In the result, this Crl.R.P is disposed of confirming the conviction of the revision petitioner under section 138 of the NI Act as recorded by the courts below. Thus while confirming the sentence of imprisonment, the revision petitioner is sentenced to pay a fine of Rs.62,500/- within three months from today and in case of any default in paying the above amount within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for two CRRP 3056/10 -:5:- months. Accordingly the revision petitioner is directed to appear before the trial court on 19th January, 2011 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 her presence and to execute the sentence and for realisation of the amount. On realisation of the fine amount, a sum of Rs.60,000/- shall be paid to the complainant as compensation under section 357(1)(b) of Cr.P.C and the remaining amount shall be deposited in the state Exchequer. Coercive steps, if any, pending against the revision petitioner shall be deferred till 19.1.2011. This Crl.R.P is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- CRRP 3056/10 -:6:- kvm/-