IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 16TH SEPTEMBER 2010 / 25TH BHADRA 1932 Crl.Rev.Pet.No. 2693 of 2010(B) -------------------------------------------- [CRL.A.NO.340/2007 OF I ADDL.SESSIONS COURT, ERNAKULAM, CC.NO.1475/2002 OF ADDL.CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM] .................... REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------------- P.A.NAZEER, PROPRIETOR, M/S.NASA TRADERS, NEAR IRON BRIDGE, ALLEPPEY. BY ADV. SRI.IEANS.C.CHAMAKKALA. RESPONDENTS/RESPONDENTS/COMPLAINANT: ---------------------------------------------------------------------- 1. M/S.SOURASHTRA CEMENT LTD, 28/34,G-130,FIRST FLOOR,PANAMPILLY NAGAR, NOW HAVING THE OFFICE AT KALYANI APARTMENTS, OPP.SUDHEENDRA MEDICAL MISSION HOSPITAL, KACHERIPPADY, ERNAKULAM,REPRESENTED BY LALA K.MOHAMMED. 2. KERALA STATE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.P.P.RAJESH, R2 BY PUBLIC PROSECUTOR SRI. V. TEK CHAND. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. V.K.MOHANAN, J. ------------------------------------------ Crl.R.P. No. 2693 of 2010 ---------------------------------------- Dated the 16th Day September 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 towards the outstanding amount due to the complainant connected with purchase of cement, the accused issued a cheque dated 20.1.2000 for an amount of Rs.1,67,828/- which when presented for encashment, dishonoured with the endorsement “exceeds arrangement” 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 Addl.Chief Judicial Magistrate, Ernakulam, by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted C.C.No.1475/2002. During the course of trial, from the side of the complainant, PW1 was examined and produced Exts.P1 to P7 as documentary evidence. From the side of the defence, no CRL.R.P.2693/10 -:2:- evidence either oral or documentary was produced. 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 simple imprisonment for three months and to pay compensation of Rs.3,00,000/-,(Rs.two lakhs only) to the complainant under section 357(3) Cr.P.C, in default, he is directed to undergo simple imprisonment for a further period of three months. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 2.7.2009 in Crl.A.No.340/2007, the court of Ist Addl. Sessions Judge, Ernakulam dismissed the appeal confirming the conviction of the revision petitioner but modified the sentence by reducing the imprisonment to simple imprisonment for one day, i.e. till rising of the court and the revision petitioner is further CRL.R.P.2693/10 -:3:- directed to pay a fine of Rs.2,00,000/-(Rs.two lakhs only) which on realisation shall be paid to the complainant as compensation. The default sentence is fixed as one month simple imprisonment. It is the above judgments of the trial court as well as the lower appellate court challenged in this Crl.R.P. 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 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. as this court is not inclined to interfere with the order of conviction, the learned counsel for the CRL.R.P.2693/10 -:4:- revision petitioner submitted that a breathing time may be granted to the revision petitioner to pay the fine amount. 4. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered favourably, but subject to slight enhancement of the fine amount. In the result, this Crl.R.P is disposed of confirming the conviction of the revision petitioner recorded by the courts below for the offence under section 138 of the N.I.Act . Thus while maintaining the sentence of imprisonment and fine as modified and fixed by the lower appellate, the fine amount is enhanced to Rs.2,30,000/- (Rs.two lakhs and thirty thousand only) which shall be deposited within three months from today and in case of any default in depositing the fine amount, the revision petitioner is directed to undergo simple imprisonment for a period of four months. Accordingly, the revision petitioner is directed to appear before the trial court on 17th December, 2010 to receive the sentence and to deposit the fine amount. 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 CRL.R.P.2693/10 -:5:- against the revision petitioner to secure his presence and to execute the sentence and for realisation of the amount. On realisation of the fine amount, a sum of Rs.2,25,000/-(Rs.Two lakhs and twenty five thousand only) shall be paid to the complainant as compensation under section 357(1)(b) of Cr.P.C. Coercive steps if any pending against the revision petitioner shall be deferred till 17.12.2010. This Crl.R.P is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/-