IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 18TH JUNE 2010 / 28TH JYAISTHA 1932 Crl.Rev.Pet.No. 1787 of 2010() ------------------------------ CRA.128/2007 of ADDL. SESSIONS COURT, ALAPPUZHA CC.965/2005 of JUDL.MAGISTRATE OF FIRST CLASS-II, CHERTHALA .................... REVN. PETITIONER: REVISION PETITIONER/APPELLANT/ACCUSED ---------------------------------------------------------- O.P.RAPHEL, S/O.O.M.PAULO, OLATHUPURATHU, MUNAMPAM MURI, KUZHIPALLI VILLAGE, KOCHI. BY ADV. SRI.S.RAJEEV RESPONDENTS: COMPLAINANTS & STATE ----------------------------------- 1. A.K.XAVIER, S/O.KAIPARI, ALUNKAL VEEDU, CHANDIROOR P.O., CHERTHALA. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.VENUGOPAL.M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------ Crl.R.P.No.1787 of 2010 ----------------------------- Dated this the 18th day of June, 2010. O R D E R Accused in prosecution for the offence u/s.138 of the Negotiable Instruments Act is the revision petitioner. In this revision, he is challenging his conviction and sentence u/s.138 of Negotiable Instruments Act imposed by the courts below. 2. The case of the complainant is that the revision petitioner/accused, borrowed a sum of Rs.20,000/- from the complainant and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 08.08.2003. When the cheque was presented for encashment the same was, dishonored as there was no sufficient fund in the account maintained by the accused and the accused further failed to repay the amount, even though he was requested for the same by issuing a statutory notice. Hence according to the complainant, the accused has committed the offence u/s.138 of the N.I.Act. With the same allegation, Crl.R.P.No.1787/2010 2 complainant approached the Judicial First Class Magistrate Court, Cherthala by filing a formal complaint upon which cognizance was taken u/s.138 of the N.I.Act and instituted C.C.No.965/2005. During the trial the complainant himself was examined as PW1 and produced Exts.P1 to P6 documents. Though no document was produced from the side of the defence, DWs 1 and 2 were examined. On the basis of the available materials, the trial court found that the complainant has succeeded in proving the case and accordingly found that the revision petitioner/accused is guilty, u/s.138 of N.I.Act. Accordingly he is sentenced to undergo simple imprisonment for three months and also ordered to pay a sum of Rs.20,000/- to the complainant as compensation u/s.357(3) of Cr.P.C and two months simple imprisonment fixed as default sentence. Against the above conviction and sentence, though the revision petitioner has preferred an appeal by the judgment dated 08.10.2007 in Crl.Appeal No.128/2007, the Court of Addl. Sessions Judge, Alappuzha dismissed the same Crl.R.P.No.1787/2010 3 confirming the conviction and sentence. The present revision petition is filed against the above conviction and sentence. 3. I have heard Mr.S.Rajiv, learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. Reiterating the stand taken by the accused during the trial as well as in appeal, learned counsel for the revision petitioner submits that there was no transaction between the accused and the complainant and the cheque which is in question, is the one entrusted with the complainant, when the wife of the accused took an Ice Plant of the complainant on lease, where the accused stood as a guarantor. The trial court as well as the lower appellate court found that though the accused has taken such a defence, the same was not substantiated so as to discharge the burden of rebutting the presumption available in favour of the complainant. The trial court as well as the lower appellate court has concurrently Crl.R.P.No.1787/2010 4 found that the revision petitioner is guilty, and I find no reason to interfere with such finding in exercise of the revisional jurisdiction of this court. 4. Learned counsel for the revision petitioner submitted that, some breathing time may be granted to the petitioner to make the compensation and also requested to take a lenient view in the matter of sentence. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered favourably, especially in the light of the dictum laid down by the Hon'ble Supreme Court in the decision in [JT 2010(4) SC 457] ( Damodar S. Prabhu V. Sayed Babalal H), subject to other relevant facts involved in the case. In the present case, the cheque is dated 08.08.2003 for a sum of Rs.20,000/-. Going by the records, it is to be presumed that a sum of Rs.20,000/-, which belongs to the complainant is in the hands of the revision petitioner for 7 years. Thus, after considering the Crl.R.P.No.1787/2010 5 above facts and also following the legal position, I am of the view that while granting some time to the revision petitioner to deposit the amount, the amount can be enhanced slightly and also the sentence of imprisonment can be reduced. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner u/s.138 of the N.I.Act as recorded by the courts below. Accordingly, he is sentenced to undergo imprisonment till the raising of the court and enhancing the compensation, he is directed to pay an amount of Rs.23,000/-(Rupees Twenty three thousand only) as compensation to the complainant u/s.357(3) of Cr.P.C, in default, he is directed to undergo simple imprisonment for a period of six months. Accordingly, the revision petitioner is directed to appear before the trial court on 20.08.2010 to receive the sentence and for the payment of the compensation amount as directed by this court. In case, any failure on the Crl.R.P.No.1787/2010 6 part of the revision petitioner in appearing before the court below and making payment, as directed above, the trial court is free to take coercive steps to secure the presence of the revision petitioner for executing the sentence and to realize the compensation amount. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, JUDGE. ss/.