IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 16TH SEPTEMBER 2010 / 25TH BHADRA 1932 Crl.Rev.Pet.No. 2692 of 2010() ---------------------------- CRA.642/2008 OF ADDL. SESSIONS COURT, PALAKKAD ST.4761/2006 OF JUDL. FIRST CLASS MAGISTRATE COURT- III, PALAKKAD ................................................ REVISION PETITIONER / APPELLANT / ACCUSED : --------------------------------------------------------------------- KRISHNANKUTTY M. S/O.BALAKRISHNAN, MARUTHAMPALLATH HOUSE RAMASSERY PO, PALAKKAD. BY ADV. SRI.P.K.NIJOY RESPONDENTS / --------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. 2. ABDUL MANAF K S/O.KHADER, SHIBINA MANZIL, KARISANKAR ROAD THAREKKAD, PALAKKAD. R1 BY PUBLIC PROSECUTOR SMT. SUMANGALA P.N. R2 BY ADV. SRI.JACOB SEBASTIAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2692 of 2010 ------------------------------- Dated this the 16th day of September, 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 borrowed a sum of Rs.60,000/- from the complainant and towards the discharge of the said liability, the accused issued a cheque dated 21.8.2006 for a sum of Rs.60,000/-, 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 Negotiable Instruments Act. With the said allegation, the complainant approached the Judl. First Class Magistrate Court-III, Palakkad, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments 2 Crl. R.P.No.2692 of 2010 Act and instituted S.T.No.4761/06. During the trial of the case, PW1, the complainant himself was examined from the side of the complainant and Exts.P1 to P5 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 the case against the accused/revision petitioner and consequently found that the accused is guilty and thus convicted him u/s.138 of Negotiable Instruments Act. On such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment for 1 month and also ordered the revision petitioner to pay a fine of Rs.60,000/-, failing which the revision petitioner was directed to undergo simple imprisonment for 1 month. It is also ordered that if the fine amount is realised, the same shall be given to the complainant. 3. Though an appeal was filed, at the instance of the 3 Crl. R.P.No.2692 of 2010 revision petitioner/accused, by judgment dated 27.1.2010 in Crl.A.642/08, the Court of Sessions Judge, Palakkad Division, allowed the appeal only in part, confirming the conviction imposed against the accused by the trial court. The sentence of imprisonment is set aside and sentenced the revision petitioner to pay a fine of Rs.61,000/- and the default sentence is fixed as one month simple imprisonment. It is also ordered that on realisation of the fine amount, a sum of Rs.60,000/- shall be paid the complainant as compensation u/s.357(1) of Cr.P.C. It is the above 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 4 Crl. R.P.No.2692 of 2010 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 Negotiable Instruments Act, is approved. 6. As this court is not inclined to interfere with the conviction recorded by the courts below, the learned counsel for the revision petitioner submitted that, some breathing time may be granted 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 but subject to slight enhancement in 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 courts below. Accordingly, while confirming the conviction and sentence of fine ordered by the court below, the fine amount is enhanced to the tune of Rs.72,000/- and the revision petitioner is directed to deposit the fine amount, within 3 months from today and in 5 Crl. R.P.No.2692 of 2010 case of default in paying the fine amount within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for 2 months. Accordingly, the revision petitioner is directed to deposit the fine amount on or before 17.12.2010. In case, any failure on the part of the revision petitioner in paying the fine amount within the stipulated period, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence. On realisation of the fine amount, a sum of Rs.70,000/- shall be paid to the complainant as compensation u/s.357(1)(b) of Cr.P.C. and the remaining amount shall be paid to the State Exchequer. The execution of warrant if any, pending against the revision petitioner shall be deferred till 17.12.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/