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. 2978 of 2010() ------------------------------ CRA.123/2010 of 3RD ADDL. DISTRICT & SESSIONS COURT (ADHOC-I), THODUPUZHA ST.90/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THODUPUZHA .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: :- ------------------------------------------------------------------ PRASAD.M.N., S/O.NARAYANAN, MAPILAKUDIYIL HOUSE, 5TH MILE, MUKKUDAM P.O., ADIMALY. BY ADV. SRI.K.K.SUNIL KUMAR (IDUKKI) RESPONDENT(S)/RESPONDENTS/STATE & COMPLAINANT:- ------------------------------------------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. 2. SREE GOKULAM CHIT AND FINANCE CO. (P)LTD.356, ARCOT ROAD, KODAMBAKKAM, CHENNAI-600 024, REPRESENTED BY POWER OF ATTORNEY HOLDER SRI.A.V.SANTHOSH, S/O.VIJAYABHANU, ASST.MANAGER (BUSINESS) THODUPUZHA BRANCH – 656 001. PUBLIC PROSECUTOR SMT.SUMANGALA P.N. 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.2978 of 2010 --------------------------------- Dated this the 11th day of October, 2010 O R D E R Challenge in this revision petition is against the conviction and sentence of the revision petitioner who is 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 was a subscriber to the chitty run by the complainant. Towards the discharge of legally enforceable debt connected with the above transaction, the revision petitioner issued a cheque dated 18.6.2007 for a sum of Rs.78,380/-, 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 Crl.R.P.No.2978 of 2010 -: 2 :- 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 Judl. First Class Magistrate Court-II, Thodupuzha, by filing a formal complaint, upon which cognizance was taken u/s.138 of the Negotiable Instruments Act and instituted S.T.No.90/2008. During the trial of the case, Pws.1 & 2 were examined from the side of the complainant and Exts.P1 to P10 were marked. No evidence 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 the case against the accused/ revision petitioner and consequently held that the accused is guilty and thus convicted him u/s.138 of the Negotiable Instruments Act. Crl.R.P.No.2978 of 2010 -: 3 :- On such conviction, the trial court sentenced the revision petitioner to undergo imprisonment till the rising of the court and to pay a compensation of Rs.78,380/- to the complainant u/s.357(3) of Cr.P.C. and the default sentence is fixed as three months simple imprisonment. 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 15.7.2010 in Crl.A.No.123/2010, the Court of 3rd Addl.District & Sessions Judge (Adhoc-I), Thodupuzha, dismissed the appeal, confirming the conviction and sentence of the revision petitioner u/s.138 of the Negotiable Instruments Act. 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 Crl.R.P.No.2978 of 2010 -: 4 :- 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 recorded by the courts below against the revision petitioner u/s.138 of the Negotiable Instruments Act, is approved. 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 further submitted that two months time may be granted to pay the compensation amount. Having regard to the facts and circumstances involved in the case, I am of the view that the above request of the learned counsel can be considered positively and some time can be granted to pay the compensation amount. Crl.R.P.No.2978 of 2010 -: 5 :- In the result, this revision petition is disposed of confirming the conviction of the revision petitioner u/s.138 of the Negotiable Instruments Act as recorded by the courts below. Accordingly, while confirming the sentence of imprisonment as modified and fixed by the trial court, the order to pay compensation and the default sentence ordered by the appellate court were also confirmed and the revision petitioner is granted time up to 30.11.2010 to pay the compensation amount and it is made clear that the default sentence fixed by the appellate court will be attracted only if there is failure on the part of the revision petitioner in paying the amount on or before 30.11.2010. Accordingly, the revision petitioner is directed to appear before the trial court on 30th November, 2010 to receive the sentence of imprisonment and to pay the compensation amount. In case any failure on the part of the revision petitioner in appearing before the court below as directed above and making the payment of compensation amount, Crl.R.P.No.2978 of 2010 -: 6 :- 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, pending against the revision petitioner shall be deferred till 30.11.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. Jvt