IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 11TH JUNE 2010 / 21ST JYAISTHA 1932 Crl.Rev.Pet.No. 1779 of 2010() ------------------------------ CRA.798/2007 of I ADDL. SESSIONS COURT, THRISSUR ST.1465/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT, VADAKKANCHERY .................... REVN. PETITIONER: ACCUSED ---------------------------- UDAYABHANU, S/O.NARAYANAN, KALARIKKAL HOUSE, ENKAKKAD, THALAPPILLY TALUK, P.O.WADAKKANCHERY. BY ADV. SRI.M.SHAJU PURUSHOTHAMAN SRI.K.S.RAJESH RESPONDENT(S): COMPLAINANT -------------------------- 1. K.M.MAHESH, S/O.MADHAVAN, KULANGARAVALAPPIL HOUSE, PUNNAMPARAMBU DESOM, THEKKUMKARA VILLAGE, THALAPILLY TALUK (IDASSERY HOUSE, CHOORAKKATUKARA, P.O.AMALANAGAR- PRESENT ADDRESS). 2. STATE, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY P.P. SRI VENUGOPAL M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.R.P. No. 1779 OF 2010 ---------------------------------------- Dated the 11th Day of June, 2010 ORDER The accused is the revision petitioner. He challenges his conviction and sentence under section 138 of the Negotiable Instruments Act. 2. The case of the complainant, Ist respondent herein, is that the revision petitioner/accused borrowed a sum of Rs.75,000/- from the complainant and towards the discharge of the said liability, the revision petitioner issued Ext.P1 cheque for a sum of Rs.75,000/- and the said cheque when presented for encashment, was dishonoured and consequently, the complainant sent a lawyer notice demanding the payment of the cheque amount but the same was declined and hence the accused committed the offence under section 138 of the N.I.Act. With the said allegation, the complainant approached the Judicial First Class Magistrate, Wadakkanchery by filing a complaint upon which cognizance was taken under section 138 of the NI Act and instituted Crl.R.P.1779/10 -:2:- S.T.No.1465/2005 and during the course of trial, the complainant himself gave evidence as PW1 and produced Exts.P1 to P6. Admittedly, no evidence was adduced from the side of the defence. On the basis of the materials and evidence on record, the trial court found that the complainant has proved that Ext.P1 cheque was issued towards the discharge of the liability due to the complainant. Accordingly, the court held that the revision petitioner is guilty for the offence charged against him. Thus the trial court convicted him under section 138 of the NI Act and sentenced him to undergo simple imprisonment for a period of three months and also directed him to pay a sum of Rs.75,000/- being the cheque amount as compensation to the complainant under section 357(3) Cr.P.C and the default sentence is fixed was simple imprisonment for one month. Challenging the above conviction and sentence, though an appeal was preferred, by judgment dated 20.3.2010 in Crl.Appeal No.798/2007, the court of First Additional Sessions Judge, Thrissur allowed the appeal only in part and confirmed the conviction but the Crl.R.P.1779/10 -:3:- sentence was modified by reducing imprisonment to imprisonment till the rising of the court. The compensation amount and the default sentence ordered by the trial court are maintained. It is the above judgments of the courts below and conviction and sentence challenged in this Crl.Revison Petition. 3. I have heard the learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. 4. On a consideration of the arguments advanced by the learned counsel and on a perusal of the impugned judgments, it appears that the revision petitioner has no dispute regarding the signature on Ext.P1 cheque, execution and issuance of the same, though not as claimed by the complainant. According to the revision petitioner, the cheque in question was entrusted with the complainant as a security connected with another transaction. Admittedly, no evidence is adduced from the side of the defence. But, as the accused admitted the execution and issuance of the cheque, it is for him to Crl.R.P.1779/10 -:4:- establish the same to the satisfaction of the court that the cheuqe in question was issued connected with the transaction which he claimed. Absolutely, there is no evidence or materials to substantiate such plea. In the absence of any evidence or materials to find fault with the trial court or lower appellate court on their concurrent finding on facts, I find no merit in the this Revision Petition. 5. The learned counsel for the revision petitioner submitted that a breathing time may be granted to the revision petitioner to pay the compensation amount ordered by the courts below. The said submission can be considered in favour of the revision petitioner. When the lower appellate court disposed of the appeal, the revision petitioner was directed to appear before the trial court on 28.5.2010 for receiving the sentence. By extending the time for appearance before the trial court, I am of the view that this Crl R.P can be disposed of. 6. In the result, this Crl.R.P is disposed of confirming the conviction recorded by the courts below against the Crl.R.P.1779/10 -:5:- revision petitioner under section 138 of the NI Act and by maintaining the sentence imposed against the revision petitioner and also the direction to pay compensation of Rs.75,000/- to the complainant under section 357(3) of Cr.P.C. The revision petitioner is directed to appear before the trial court on 11th August, 2010 to receive the sentence and also to pay the compensation. 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 his presence and to execute the sentence and for realisation of the amount. It is made clear that the revision petitioner is free to make the payment directly to the complainant subject to the satisfaction of the trial court. Execution of warrant if any pending against the revision petitioner shall be deferred till 11.8.2010. This Crl.Revision Petition is disposed of accordingly. Crl.R.P.1779/10 -:6:- V.K.MOHANAN, JUDGE kvm/- O.P.No. JUDGMENT Crl.R.P.1779/10 -:7:- Dated:..