IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 14TH FEBRUARY 2011 / 25TH MAGHA 1932 Crl.Rev.Pet.No. 3744 of 2010() -------------------------------------------- CRA.NO.100/2008 OF SESSIONS COURT, PATHANAMTHITTA CC.NO.939/2002 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, THIRUVALA. ................................ REVISION PETITIONER/APPELLANT/ACCUSED: --------------------------------------------------------------------- JOHN SIMON,AGED 43 YEARS,S/O.K.S.JOHN, KANJIRATHINMOOTTIL,PUNNAKUNNAM MURI,KUTTAPPUZHA VILLAGE,THIRUVALLA TALUK. BY ADVS. SRI.P.HARIDAS, SMT. SIKKY RAVISHANKAR. RESPONDENT(S): STATE AND COMPLAINANT: ---------------------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. 2. T.H.MUHAMMED KUNJU,THEKKEKARA VEEDU, KIZHAKKAN MUTHOOR,KUTTAPUZHA VILLAGE, P.O. PATHANAMTHITTA - 682 006. R1 BY PUBLIC PROSECUTOR SRI. REKHA C. NAYAR R2 BY ADV. SRI.T.K.MARTHANDAN UNNITHAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. --------------------------------------------- Crl.R.P.No.3744 of 2010 --------------------------------------------- Dated this the 14th day of February, 2011 O R D E R The accused in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') approached this Court by preferring the above revision petition challenging his conviction and sentence, imposed as per judgments of the trial court as well as the lower appellate court. 2. The case of the second respondent/complainant against the revision petitioner/accused is that towards the discharge of the liability due to the complainant, the accused issued a cheque for a sum of Rs.7 lakhs which, when presented for encashment, was dishonoured for want of sufficient fund in the account maintained by the revision petitioner and the petitioner failed to pay the cheque amount, even though he was requested for the same by issuing a statutory notice. With the said allegation, the complainant approached the Judicial First Class Magistrate Crl.R.PNO.3744 of 2010 :-2-: Court, Thiruvalla whereupon C.C.No. 939 of 2002 was instituted taking cognisance for the offence under Section 138 of the N.I.Act. During the trial of the above case, the second respondent/complainant adduced his evidence consisting of the documentary evidence such as Exts.P1 to P8 and the oral evidence of himself and another as PW1 and PW2. No evidence either oral or documentary was 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 held that, the complainant has established the case against the revision petitioner/accused and consequently, found that the accused is guilty and thus, he is convicted under Section 138 of the N.I.Act. On such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment for six months and also directed to pay fine of Crl.R.PNO.3744 of 2010 :-3-: Rs.7 lakhs and the default sentence is fixed as three months simple imprisonment. It is also ordered that if the fine amount is realised, the same shall be paid to the complainant towards compensation under Section 357(1)(b) of the Cr.P.C. 3. Though an appeal was filed against the above conviction and sentence by the revision petitioner/accused, as per judgment dated 21.11.2009 in Crl.A.No. 100 of 2008, the court of the Sessions Judge, Pathanamthitta allowed the appeal only in part and thus, while confirming the conviction imposed against the revision petitioner by the trial court, the sentence of imprisonment is modified and reduced and accordingly, the revision petitioner is sentenced to undergo simple imprisonment till the rising of the court and the appellate court, instead of fine and compensation under Section 357(1)(b), directed the revision petitioner to pay compensation to the complainant under Section 357(3) of the Cr.P.C. and the amount is fixed as Crl.R.PNO.3744 of 2010 :-4-: Rs.7 lakhs and the default sentence is fixed as simple imprisonment for a period of three months. It is the above judgments of the courts below and conviction and sentence, challenged in this Crl.R.P. 4. I have heard learned counsel appearing for the revision petitioner and counsel appearing for the respondent and also perused the judgments of the courts below. 5. As this Court is not inclined to interfere with the order of conviction and the sentence imposed against the revision petitioner, the learned counsel for the revision petitioner submitted that some time may be granted to the revision petitioner to pay the compensation amount. Having regard to the facts and circumstances of the case, I am of the view that the said submission cannot be entertained. In the present case, the cheque in question is dated 10.7.2001, that too for an amount of Rs.7 lakhs. The trial court, though imposed the sentence of simple Crl.R.PNO.3744 of 2010 :-5-: imprisonment for a term of six months and that too, to pay the fine and the fine amount fixed as equal to the cheque amount and the default sentence is fixed as three months simple imprisonment, the appellate court modified the entire sentence and now the petitioner is sentenced to undergo only one day simple imprisonment, i.e., till the rising of the court and he is directed to pay compensation only and the sentence to pay fine was deleted. The trial court judgment is dated 4.4.2008 and the appellate court judgment is dated 21.11.2009, but so far no amount is paid by the revision petitioner. In the above circumstances, this Court will not be justified in granting further time to the petitioner. There is no merit in this Crl.R.P. and accordingly, the same is dismissed. V.K.Mohanan, Judge. MBS/ Crl.R.PNO.3744 of 2010 :-6-: V.K.MOHANAN, J. -------------------------------------------- Crl.R.PNO.3744 of 2010 :-7-: Crl.A.NO. OF 200 ------------------------------------ J U D G M E N T DATED: -2-2010 Crl.R.PNO.3744 of 2010 :-8-: