IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 30TH AUGUST 2010 / 8TH BHADRA 1932 Crl.Rev.Pet.No. 2493 of 2010() ------------------------------ CRA.497/2009 of ADDL.SESSIONS COURT, (ADHOC-1), ERNAKULAM CC.1269/2007 of JUDL. MAGISTRATE OF FIRST CLASS-III, KOCHI .................... REVN. PETITIONERS: --------------------- HARIKUMAR -I,HARINIVAS, CHEMMAKADU P.O.,ANCHALUMOODU, KOLLAM BY ADV. SRI.P.BANI RESPONDENTS: --------------- 1. ANTO P.O.,PROPRIETOR, MIRACLE PHOTOGRAPHY, 36/808A., KOTTECANAL ROAD, COCHIN-18 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM . R2 BY P.P. STI V. TEK CHAND. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.R.P. No. 2493 OF 2010 ---------------------------------------- Dated the 30th Day of August, 2010 ORDER The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the revision petitioner as he is aggrieved by the conviction and sentence imposed against him as per the impugned judgment. 2. The case of the complainant is that the accused borrowed a sum of Rs.15,000/- from the complainant and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 7.2.2007 for an amount of Rs.15,000/- which when presented for encashment, dishonoured as there was no sufficient fund in the account maintained by the accused and the revision petitioner/accused miserably failed to repay the cheque amount in spite of a formal notice caused to issue by him. With the said allegation, the complainant approached the court of Chief Judicial Magistrate, Ernakulam, by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and Crl.R.P.No.2493/10 -:2:- instituted C.C.No.1269/2007which was subsequently transferred to the trial court. During the course of trial, the complainant himself mounted to the box and adduced oral evidence as PW1. He has also produced Exts.P1 to P6 as documentary evidence. No evidence, either oral or documentary, was produced from the side of the defence. After evaluation of the evidence and the materials on record, the trial court has found that Ext.P1 cheque was issued towards the discharge of a legally enforceable debt that due to the complainant and accordingly, the trial court held that the complainant has succeeded in establishing the allegation against the revision petitioner-accused and found that the revision petitioner-accused is guilty. Consequently, the accused is convicted under section 138 of the N.I.Act. On such conviction, the trial court sentenced the revision petitioner-accused to undergo imprisonment till the rising of the court and also ordered to pay a fine of Rs.15,000/- in default, he is directed to undergo simple imprisonment for a period of 2 weeks. It is also ordered that on realisation of the fine amount, the same shall be paid to the Crl.R.P.No.2493/10 -:3:- complainant as compensation under section 357(1) Cr.P.C. Challenging the above order of conviction and sentence, though an appeal was preferred at the instance of the revision petitioner/accused, by judgment dated 29.5.2010 in crl.a.No.497/2009, the court of Addl.Sessions Judge (Ad hoc- I), Ernakulam, dismissed the appeal confirming the conviction and the sentence. 3. Reiterating the contention taken by the defence during the trial and appellate stages, the learned counsel submitted that the complainant has not established the transaction, execution and issuance of the cheque and therefore, the courts below are absolutely wrong in convicting the revision petitioner-accused imposing sentence against him. The trial court as well as the lower appellate court has concurrently found in favour of the complainant and against the revision petitioner-accused. Though the revision petitioner is heard elaborately, nothing is brought out to take a different view by interfering with the concurrent findings of the courts below. All the contentions are based upon the facts and evidence on record which were Crl.R.P.No.2493/10 -:4:- elaborately considered by the courts below. Therefore, I find no reason to interfere with such concurrent finding of the courts below and accordingly, the conviction recorded by the courts below is confirmed. 4. As this Court is not inclined to interfere with the concurrent findings of the courts below, the learned counsel for the revision petitioner submitted that some time may be granted to the revision petitioner to pay the fine amount and to receive the sentence of imprisonment. 5. Having regard to the facts and circumstances involved in this case, I am of the view that the said submission can be considered favourably, but subject to slight enhancement in the fine amount considering the fact that the cheque is pertained to the year 2007. In the result, this Crl.R.P is disposed of confirming the conviction and sentence imposed by the courts below against the revision petitioner under section 138 of the N.I.Act. Accordingly, the revision petitioner is directed to pay a fine of Rs.18,000/- within three months from today and in default in paying the amount within the stipulated Crl.R.P.No.2493/10 -:5:- period, he is directed to undergo simple imprisonment for a period of one month. Accordingly, the revision petitioner is directed to appear before the trial court on 3oth November, 2010 to receive the sentence and to pay the fine amount. On realisation of the fine amount, a sum of Rs.17,500/- shall be paid to the complainant as compensation under section 357(1)(b) Cr.P.C. and the remaining amount shall be paid to the State Exchequer. 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. Execution of warrant if any pending against the revision petitioner shall be kept in abeyance till 30.11.2010. This Crl.R.P is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- Crl.R.P.No.2493/10 -:6:- kvm/-