IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 6TH JULY 2010 / 15TH ASHADHA 1932 Crl.Rev.Pet.No. 2000 of 2010() ------------------------------ CRA.138/2007 of ADDL. SESSIONS COURT (FAST TRACK-II, ADHOC), THRISSUR CC.236/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHAVAKKAD .................... REVN. PETITIONER(S): APPELLANT ------------------------------ 1. K.A.RAZAK, S/O.BAPPU HAJI, KOMBATHAYIL HOUSE, CHOOLPPURAM, KOTTAPADI, CHAVAKKAD TALUK, THRISSUR DISTRICT. 2. K.A.MUHAMMED, S/O.BAPPU HAJI, RESIDING AT DO. DO. BY ADV. SRI.P.RAMACHANDRAN RESPONDENT(S): COMPLAINANT -------------------------- 1. T.VASU, S/O.T.APPUKUTTAN, THELEKKARA HOUSE, MAMMIYOOR, GURUVAYOOR PO, CHAVAKKAD TALUK. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SRI.C.M.NAZAR, PUBLIC PROSECUTOR FOR R2. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ami/ V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2000 of 2010 ------------------------------- Dated this the 6th day of July, 2010. O R D E R The revision petitioners are the accused nos.2 and 3 in a prosecution for the offence punishable u/s.138 of Negotiable Instruments Act. 2. The case of the complainant is that, the accused/revision petitioners are partners of the 1st accused firm and they borrowed a sum of Rs.1 lakh on behalf of the 1st accused and towards the discharge of the said loan amount, the accused issued Ext.P1 cheque dated 17.11.2003, which when presented for encashment dishonoured, as there was no sufficient fund in the account maintained by the accused and though a statutory notice was issued demanding for the repayment of the cheque amount, the amount was not returned and thus according to the complainant, the accused have committed the offence punishable u/s.138 of Negotiable Instruments Act. With the said allegation, the complainant approached the Judicial First Class Magistrate Court-Chavakkad, by filing a formal complaint, upon Crl. R.P.No.2000 of 2010 2 which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.236/04. From the side of the complainant PW1 was examined and produced Exts.P1 to P10. No evidence either oral or documentary produced from the side of the defence. On conviction, the trial court sentenced the 1st accused to pay fine of Rs.5,000/- and the 2nd and 3rd accused who are the revision petitioners herein, sentenced to undergo simple imprisonment for 3 months each and to pay compensation of Rs.50,000/- each to the complainant u/s.357 (3) of Cr.P.C. and the default sentence is fixed as 3 months. In appeal, by judgment dated 28.4.2010 in Crl.A.No.138/07, the court of Addl. Sessions Judge (Fast Track Court-II, Adhoc), Thrissur, allowed the appeal only in part and thus the conviction imposed against the accused are confirmed and the sentence was modified and reduced the same into, till rising of the court and also directed each of the revision petitioners to pay a sum of Rs.50,000/- as compensation to the complainant/1st respondent and in default they are directed to suffer simple Crl. R.P.No.2000 of 2010 3 imprisonment for 3 months each. 3. The learned counsel for the revision petitioners submitted that, the business undertaken by the revision petitioners has already stopped as it sustain heavy loss and as such there is no firm and therefore a lenient view may be taken in the matter of sentence and some breathing time may be granted to them to pay the 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 but subject to enhancement of the compensation amount fixed by the courts below. In the result, this revision petition is disposed of confirming the conviction of the revision petitioners u/s.138 of Negotiable Instruments Act as recorded by the courts below. Thus the sentence of imprisonment as modified and ordered by the lower appellate court is confirmed. Accordingly, each of the revision petitioners are directed to pay a sum of Rs.56,000/- as compensation to the complainant/respondent and in default in Crl. R.P.No.2000 of 2010 4 paying the amount, each of the revision petitioners are directed to undergo simple imprisonment for a period of 4 months. Accordingly, the revision petitioners are directed to appear before the trial court on 4.11.2010, to receive the sentence and to pay the compensation. In case any failure on the part of the revision petitioners in appearing before the court below as directed above and in depositing the compensation amount, the trial court is free to take coercive steps to secure the presence of the revision petitioners and to execute the sentence awarded against them. The execution of the warrant if any pending, against the revision petitioners shall be deferred till 5.11.2010. V.K.MOHANAN, Judge. ami/