IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 28TH JANUARY 2010 / 8TH MAGHA 1931 Crl.Rev.Pet.No. 343 of 2010 ----------------------------------- (AGAINST THE CONVICTION AND SENTENCE PASSED BY THE CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA IN S.T.NO.375/2007 AND THE 3RD ADDITIONAL SESSIONS COURT (ADHOC-I), THODUPUZHA IN CRL.A.NO.138/2009 DTD.3.11.2009) REVN. PETITIONER/APPELLANT/ACCUSED ------------------------------------------------------------- K.E.MATHEW,AGED 45 YEARS, KANICHIKKATTU HOUSE,PURAMATTOM.P.O, PATHANAMTHITTA DISTRICT. BY ADV. SRI.C.S.SUNIL RESPONDENTS/RESPONDENTS/COMPLAINANT --------------------------------------------------------------------- 1. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. 2. MATHEW.K.CHERIAN, S/O.LATE K.C.CHERIAN,KOSAMATTOM HOUSE,VIJAYAPURAM VILLAGE,KOTTAYAM,REPRESENTED BY POWER OF ATTORNEY HOLDER T.K.JACOB,THONIPURACKAL HOUSE, ERICADUKARA,PUTHUPPALLY,KOTTAYAM. R1 BY PUBLIC PROSECUTOR SRI.HRITHWIK. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------- Crl.R.P.No.343 of 2010 ----------------------------------- Dated this the 28th day of January, 2010 ORDER The accused in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act (for short 'the N.I.Act') is the revision petitioner. The trial court as well as the lower appellate court have found that the accused is guilty of the offence alleged against him. 2. The case of the complainant is that connected with some transaction between the accused and the complainant, certain amounts were due to the complainant from the accused which culminated in a prosecution and as a settlement of the said prosecution, the accused has agreed to pay a sum of Rs.65,000/- and towards the payment of the said amount, the accused issued Exhibit .P3 cheque which, when presented for encashment, was dishonoured. Based on the above allegation the complainant again approached the Judicial Crl.R.P.No.343 of 2010 :-2-: First Class Magistrate Court and instituted ST.No.375/2007. The complainant had established the case against the accused by adducing cogent and satisfactory evidence which consists of oral testimony of PW.1 and the documentary evidence as Exts.P1 to P9. There is no evidence from the side of the defence. Accordingly learned Magistrate convicted the revision petitioner for the said offence and sentenced him to undergo rigorous imprisonment for six months and directed him to pay an amount of Rs.65,000/- as compensation to the complainant and in default to undergo simple imprisonment for three months. 3. Aggrieved by the above conviction and sentence, the revision petitioner had preferred an appeal which was disposed of by the court below by judgment dated 3.11.2009 in Crl.A.No.138 of 2009. By the above judgment, the lower appellate court confirmed the conviction ordered by the trial court, but Crl.R.P.No.343 of 2010 :-3-: certain modifications were made with respect to the sentence. Thus, six months rigorous imprisonment is modified and reduced to one day and exactly till the rising of the court and further directed to pay an amount of Rs.65,000/- as compensation and in default, to undergo simple imprisonment for a period of one month. It is the above conviction and sentence challenged in this revision petition. 4. Admittedly, Ext.P3 cheque was issued on the basis of Ext.P2 settlement arrived in S.T.No.172/2006 before the Judicial First Class Magistrate Court-II, Thodupuzha. Exts.P2 and P3 cheques were admitted by the revision petitioner/accused. Though a formal notice was issued before filing the complaint, no reply was given by the accused in spite of the fact that the same was received by him. It is on the basis of the above materials and evidence, both the courts came into a conclusion that the accused has committed the Crl.R.P.No.343 of 2010 :-4-: offence punishable under Section 138 of the N.I.Act and imposed the sentence. No other legal points are canvassed for the consideration of this Court. As such, there is no merit in the revision petition. 5. Learned counsel for the revision petitioner submits that the revision petitioner is not in a position to raise such huge amount within the time limit prescribed by the courts below since he had lost his employment which he had and his wife had undergone a major surgery. Considering the above mitigating circumstances, I am of the view that some more time can be granted to the revision petitioner for the payment of the amount, but subject to slight increase in the amount fixed by the court below. The cheque in question pertains to the year 2007. The lower appellate court has already granted one month time and directed him to appear before the court below on 3.2.2010, which according to the counsel, is not Crl.R.P.No.343 of 2010 :-5-: sufficient to raise the amount. Under the above circumstances, the petitioner is directed to appear before the trial court on 3.4.2010 to receive the sentence and further directed to pay a sum of Rs.70,000/- (Rupees seventy thousand only) as compensation on the date of appearance before the court below. If there is any failure on the part of the revision petitioner in appearing before the court and making the payment as aforesaid, the trial court is free to take coercive steps to procure the presence of the revision petitioner and to execute the sentence. sd/- V.K.MOHANAN, Judge. cms/MBS -true copy- P.S.TO JUDGE.