IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 26TH MAY 2010 / 5TH JYAISHTA 1932 Crl.Rev.Pet.No. 1635 of 2010() ------------------------------ CRA.296/2009 of ADDL.SESSIONS COURT (ADHOC) FAST TRACK-1, ALAPPUZHA CC.1247/2006 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHERTHALA .................... REVN. PETITIONER --------------------- PRADEEP, S/O.V.K.PRABHAKARAN, NATIONAL BUNGLOW, KANICHUKULANGARA PO,CHERTHALA. BY ADV. SRI.C.K.SAJEEV RESPONDENT(S): --------------- 1. K.BABU, S/O.KESAVAN, PADIKANDATHIL, EDAVATTOM PO, KULASEKHARAMANGALAM, VAIKKOM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. R2 BY P.P. SRI M.R.VENUGOPAL. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.R.P. No. 1635 OF 2010 ---------------------------------------- Dated 26th Day of May, 2010 ORDER The revision petitioner is the accused. By the impugned judgments, he is found guilty under section 138 of the Negotiable Instruments Act and thus he stands convicted for the said offence and sentenced to undergo simple imprisonment for one year and to pay a sum of Rs. 2,00,000/- as fine and the default sentence is fixed as three months. 2. The case against the revision petitioner/accused is that the revision petitioner had borrowed a sum of Rs. 2 lakhs from the complainant and issued a cheque dated 29.8.2006 for the said amount and when presented the same for encashment, it was dishonoured. With the above allegation, a formal complaint was filed by the complainant based upon which C.C.No.1247/2006 was instituted in the trial court. During the course of trial, the complainant himself was examined as PW1 and he produced Exts.P1 to P5. From the side of the defence, one P.P.Sanu was examined as DW1, but no other evidence was adduced. The trial court after considering the materials and evidence on record, found that the complainant has established CRL.R.P.1635/10 -:2:- his case and consequently held that he is entitled to get the presumption under section 139 of the N.I.Act, but the accused failed to rebut the presumption. Thus, the revision petitioner is found guilty under section 138 of the N.I.Act and accordingly convicted and sentenced him to undergo simple imprisonment for a period of one year and to pay a fine of Rs.2,00,000/- and in default of payment of fine, he is directed to undergo simple imprisonment for a further period of three months. On realisation of the fine amount the same is ordered to pay to the complainant under section 357(1)(b) Cr.P.C.. Though an appeal as Crl.A.No.296/2009 was preferred by the revision petitioner- accused, by judgment dated 8.3.2010, the court of Addl.Sessions Judge, Fast Track-1, Alappuzha, dismissed the same confirming the conviction and sentence against which the present revision petiton is preferred. 3. I have heard the learned counsel for the revision petitioner and also perused the judgments of the courts below. 4. On hearing the arguments of the learned counsel and on going through the judgments of the courts below, it can be seen that the revision petitioner-accused has admitted the transaction though not as claimed by the complainant, and also admitted the CRL.R.P.1635/10 -:3:- execution and issuance of the cheque. When the defence admitted the transaction and issuance of the cheque, and execution of the same, though not as claimed by the complainant, it is for the accused to substantiate his case convincingly, that too, supported by cogent evidence. According to the accused, the cheque in question was entrusted with the complainant as a security when he received chitty prize amount from the complainant being the foreman of the chitty business. But in the present case, no evidence is seen adduced in this regard. Since there is no convincing evidence or materials, in support of the plea set up by the defence, especially, when the trial court as well as the lower appellate court has concurrently found in favour of the complainant and against the accused, I find no reason to interfere with the findings on facts arrived on by the courts below. Therefore, there is no merit in this Crl.R.P. 5. The learned counsel for the revision petitioner submitted that a breathing time may be granted to the revision petitioner to pay the amount and leniency may be shown to the revision petitioner in the matter of sentence. In the light of the decision in Damodar S.Prabhu v. Sayed Babalal H (JT 2010 (4) SC 457), I am of the view that the said prayer can be considered but subject CRL.R.P.1635/10 -:4:- to enhancement of the fine amount fixed by the courts below. The cheque is dated 29.8.2006 for an amount of Rs.2 lakhs and therefore according to me, the sentence of imprisonment can be reduced to imprisonment till rising of the court but the fine amount can be enhanced to the tune of Rs. 2,10,000/- which will be sufficient to meet the ends of justice. 6. In the result, this Crl.R.P is disposed of confirming the conviction imposed against the revision petitioner under section 138 of the N.I.Act by the courts below. The sentence of imprisonment is modified and reduced to imprisonment till the rising of the court and at the same time, the sentence of fine amount is enhanced to the tune of Rs.2,10,000/- and the default sentence is fixed as three months simple imprisonment in case of failure in paying the above amount of fine. On realisation of the fine amount, the same shall be paid to the complainant under section 357(1)(b) Cr.P.C. Accordingly, the revision petitioner is directed to appear before the trial court on 31.8.2010 to receive the sentence and to make the deposit of the fine amount. If there is any failure on the part of the revision petitioner in appearing before the court below as directed above, it is for the trial court to take appropriate coercive steps for securing the presence of the CRL.R.P.1635/10 -:5:- revision petitioner and to execute the sentence including the realisation of the fine amount. The Crl.R.P is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- CRL.R.P.1635/10 -:6:- V.K.MOHANAN, J. O.P.No. CRL.R.P.1635/10 -:7:- JUDGMENT Dated:..