IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 13TH AUGUST 2010 / 22ND SRAVANA 1932 Crl.Rev.Pet.No. 2441 of 2010() ------------------------------ CRA.442/2008 of I ADDL. SESSIONS COURT, PALAKKAD ST.89/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT, PATTAMBI .................... REVISION PETITIONER/APPELLANT/ACCUSED -------------------------------------------------------------------- KUNJHIMMA, D/O.MUHAMMED, EDAYANAVALAPPIL VEEDU, ALAMKODU P.O., PONNANI TALUK. BY ADV. SRI.NAGARAJ NARAYANAN, SRI.RAJAN VELLOTH, SRI.SAIJO HASSAN, SRI.BENOJ C AUGUSTIN, SRI.RAFEEK. V.K., SRI.PRATHAP PILLAI. RESPONDENTS/RESPONDENTS/COMPLAINANTS ------------------------------------------------------------------------ 1. T. SURENDRAN, S/O.RAMAN, THANNIKKAL HOUSE, ALIKKARA, POST CHALISSERY, OTTAPALAM TALUK. 2. STATE OF KERALA, REPESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.VENUGOPAL M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13/08/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. V.K.MOHANAN, J. ---------------------------------------- Crl.R.P. No. 2441 of 2010 ---------------------------------------- Dated the 13th August, 2010 ORDER The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the revision petitioner as she is aggrieved by the conviction and sentence imposed against him as per the impugned judgment. 2. The case of the complainant is that an amount of Rs.70,000/- was due to the complainant from the accused and in discharge of the said liability, he issued Ext.P1 cheque dated 22.9.2005 for the said amount, 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 Judicial First Class Magistrate, Pattambi by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted S.T.No.89 of 2006. During the course of trial, the complainant himself mounted to the box and adduced oral evidence as PW1. He has also CRRP 2441/10 :-2-: produced Exts.P1 to P4 as documentary evidence. From the side of the defence, no 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 has 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 a period of 3 months and to pay a sum of Rs.80,000/- to the complainant as compensation under section 357(3) Cr.P.C., in default, she is directed to undergo simple imprisonment for a further period of one month. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 5.11.2009, in Crl.A.No.442/2008, the court of Addl. Sessions Judge-I, Palakkad Division, allowed the appeal only in part and thus, while confirming the conviction CRRP 2441/10 :-3-: under section 138 of the NI Act, the sentence imposed was modified and thus when the sentence of imprisonment was set aside, she was sentenced to pay a fine of Rs.71,000/- and the default sentence was fixed as simple imprisonment for one month. A sum of Rs.70,000/-, out of the fine if recovered, is directed to pay to the complainant under section 357(1) of Cr.P.C. 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 to interfere with the concurrent findings of the courts below. All the contentions are based upon the facts and evidence on record which were elaborately CRRP 2441/10 :-4-: 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 conviction, the learned counsel for the revision petitioner submitted that a breathing time may be granted to the revision petitioner to deposit the fine amount. 5. 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 with respect to the fine amount since the cheque is dated 22.9.2005 and no amount is seen paid even though the appellate court dismissed the appeal by judgment dated 5.11.2009. In the result, this Crl.R.P is disposed of confirming the conviction of the revision petitioner under section 138 of the NI Act as recorded by the courts below. Accordingly, the revision petitioner is directed to pay a fine of Rs.75,000/- within three months from today, in default, she is directed to undergo simple imprisonment for a period of one month. Accordingly, the CRRP 2441/10 :-5-: revision petitioner is directed to deposit the fine amount on or before on 12th November, 2010. On realisation of the fine amount, a sum of Rs. 73,000/- shall be paid to the complainant as compensation under section 357(1)(b) Cr.P.C. If there is any default on the part of the revision petitioner in depositing the fine amount within the stipulated time, the trial court is free to take coercive steps against the revision petitioner. Coercive step if any taken against against the revision petitioner shall be kept in abeyance till 12-11-2010. This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- CRRP 2441/10 :-6-: