IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 22ND JUNE 2010 / 1ST ASHADHA 1932 Crl.Rev.Pet.No. 1875 of 2010() ------------------------------ CRA.43/2009 of SESSIONS COURT, KASARAGOD CC.400/2008 of JUDICIAL FIRST CLASS MAGISTRATE-II (ADDL.MUNSIFF) KASARAGOD .................... REVN. PETITIONER(S): (APPELLANT/ACCUSED) :- --------------------------------------------------------------------- CHANDRASHEKHARA HOLLA, ART MASTER, S.V.S.JUNIOR COLLEGE,KATTAPADY,UDUPI.PO, MANGALORE VIA,KARNATAKA STATE. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR RESPONDENT(S): (RESPONDENT/COMPLAINANT & STATE) :- -------------------------------------------------------------------------------------- 1. ANIL KUMAR,S/O.KUMARAN NAIR, PANOORKOCHI HOUSE,P.O.KARADUKA,KASARAGOD TALUK AND DISTRICT. 2. STATE OF KERALA,REPRESENTED BY THE DIRECTOR OF PUBLIC PROSECUTIONS,HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR MR. M.R.VENUGOPAL THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt V.K.MOHANAN, J. ~~~~~~~~~~~~~ Crl.R.P.No.1875 of 2010 ~~~~~~~~~~~~~~~~~ Dated this the 22nd day of June 2010 O R D E R The accused in a prosecution for an offence u/s.138 of the Negotiable Instruments Act is the revision petitioner, who 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, towards the discharge of a debt due to the complainant, issued a cheque dated 30.12.2007 for Rs.1,10,000/-, which when presented for encashment dishonoured 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 same allegation, the complainant approached the Judicial First Class Magistrate Court-II, (Addl. Munsiff), Kasaragod, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.400/08. During the trial of the case, PW1 was Crl.R.P.No.1875 of 2010 : 2 : 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 his case against the accused/revision petitioner and consequently found that the accused is guilty and thus convicted him u/s.138 of the Negotiable Instruments Act. On such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment for 3 months and also directed the revision petitioner to pay an amount of Rs.1,10,000/- as compensation to the complainant under Sec.357(3) of Cr.P.C and default sentence is fixed as one month simple imprisonment. 3. In appeal, at the instance of the revision petitioner/ accused in Crl.A.43/09, by judgment dated 12.3.2010 in the Court of Sessions, Kasaragod, allowed the appeal only in part and the sentence of imprisonment reduced to 10 days and while Crl.R.P.No.1875 of 2010 : 3 : confirming the amount of compensation ordered by the trial court, the default sentence is enhanced to 3 months simple imprisonment. 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 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 confirmed. 6. The learned counsel submitted that some breathing time may be granted to the revision petitioner to pay the compensation amount and also submitted that the sentence of imprisonment may be set aside. Having regard to the facts and Crl.R.P.No.1875 of 2010 : 4 : circumstances involved in the case, I am of the view that the said submission can be considered favourably with slight modifications with respect to the compensation 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 trial court as well as the lower appellate court. Accordingly, the revision petitioner is sentenced to undergo simple imprisonment till rising of the court and he is also directed to pay a sum of Rs.1,15,000/- as compensation to the complainant u/s.357(3) of Cr.P.C. If there is any failure on the part of the revision petitioner in paying the compensation, he is directed to undergo simple imprisonment for a period of 3 months. Accordingly, the revision petitioner is directed to appear before the trial court on 22nd September, 2010 to pay the compensation amount as directed by this court. In case any failure on the part of the revision petitioner in appearing before the court below as directed above and in making the deposit of compensation amount, 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 Crl.R.P.No.1875 of 2010 : 5 : revision petitioner. The execution of warrant, if any, is pending against the revision petitioner, shall be deferred till 22.9.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, JUDGE. Jvt