IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 23RD JUNE 2010 / 2ND ASHADHA 1932 Crl.Rev.Pet.No. 1891 of 2010() ------------------------------ CRA.256/2002 of ADDL. SESSIONS COURT (ADHOC)-I, PATHANAMTHITTA CC.174/1999 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ADOOR .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED :- ------------------------------------------------------------------- SHIBURAJ, AGED 39 YEARS, S/O.PUSHPARAJ, PROPRIETOR, ACME ELECTRONICS, KULAKKADA P.O., KOTTARAKKARA, KOLLAM DISTRICT. BY ADV. SRI.K.V.ANIL KUMAR RESPONDENT(S)/RESPONDENT/COMPLAINANT :- ---------------------------------------------------------------------- 1. RASULDEEN, PROPRIETOR, VIEW POINT ELECTRONICS, ADOOR, PATHANAMTHITTA DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.K.SOYUZ FOR R1 PUBLIC PROSECUTOR MR.M.R.VENUGOPAL FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt V.K.MOHANAN, J. ----------------------------- Crl.R.P.No.1891 of 2010 --------------------------------- Dated this the 23rd day of June 2010 ORDER The accused in a prosecution for an offence under Sec.138 of the N.I.Act is the revision petitioner. 2. The case of the complainant is that the accused purchased 10 fridges and towards the price of the above 10 fridges, the accused issued a cheque for Rs.93,490/- which when presented for encashment dishonoured and the cheque amount was not repaid in spite of a formal demand notice and thus the revision petitioner has committed the offence punishable u/s.138 of the Negotiable Instruments Act. With the same allegation, the complainant approached the Judicial First Class Magistrate, Adoor by filing a formal complaint, upon which cognizance was taken u/s.138 of the Negotiable Instruments Act and instituted Crl.R.P.No.1891 of 2010 : 2 : C.C.No.174/1999. During the trial of the case, PW1 was examined from the side of the complainant and Exts.P1 to P5 were marked. On the basis of the available materials and evidence on record, the trial court has found that the cheque in question was issued by the revision petitioner/accused for the purpose of discharging his debt due to the complainant. Thus accordingly the court held that, the complainant has established the case against the accused/revision petitioner and consequently found that the accused is guilty and thus convicted him u/s.138 of the Negotiable Instruments Act. On such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment for 6 months and to pay a fine of Rs.5,000/- in default to undergo simple imprisonment for one month. In appeal, by judgment dated 31.8.2006 in Crl.A.No.256/2002 in the court of Additional District & Sessions Judge (Adhoc)-I, Pathanamthitta, dismissed the appeal confirming the conviction but certain modification was effected with Crl.R.P.No.1891 of 2010 : 3 : respect to the sentence. Accordingly, the lower appellate court sentenced the revision petitioner to undergo simple imprisonment for 15 days and also directed the revision petitioner to pay compensation of Rs.95,000/- under Sec.357(3) of Cr.P.C. to the complainant and in default of paying the compensation he is directed to undergo simple imprisonment for 6 months. It is the above conviction and sentence challenged in this revision petition. 3. At the time of filing the revision petition there was a delay of 1271 days which was condoned by this Court as per order dated 22.6.2010. 4. As there was a delay in filing the revision petition and appropriate orders against the execution of the sentence, the revision petitioner was arrested in the mean while and the learned counsel for the revision petitioner submitted that after the arrest he had already undergone 11 days and his continuation in jail for the remaining 4 days, he will complete the substantial sentence. Thus, the learned Crl.R.P.No.1891 of 2010 : 4 : counsel for the petitioner submitted that a lenient view may be taken in the matter of sentence and the revision petitioner may be permitted to pay the compensation ordered by the court below directly to the complainant and also submitted that a breathing time may be granted to the revision petitioner to pay the compensation amount. 5. In the light of the fact that the revision petitioner is arrested and he had undergone imprisonment to a certain period, I am of the view that some leniency can be shown in favour of the revision petitioner and he can be granted some time to pay the compensation. 6. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner under Sec.138 of the N.I.Act as recorded by the trial court as well as the lower appellate court but subject to the modification with the sentence, order of compensation and default sentence. Crl.R.P.No.1891 of 2010 : 5 : 7. The learned counsel for the petitioner submitted that the revision petitioner is ready to pay the compensation but he is in jail pursuant to his arrest and now he had undergone 11 days imprisonment and if this Court release him from jail he can pay the fine amount and thereby avoid the default sentence. Adopting a lenient view in the matter, I am of the opinion that the sentence of imprisonment can be reduced from 15 days to 11 days and he can be given an opportunity to pay the compensation amount and thereby avoid the default sentence, if he so desires. Accordingly, the sentence of imprisonment awarded by the trial court and modified by the lower appellate court stands reduced to 11 days' simple imprisonment. The revision petitioner is directed to pay the compensation either directly to the complainant or by remitting the same in the trial court subject to the satisfaction of the trial court and in case of failure on the part of the revision petitioner in paying the Crl.R.P.No.1891 of 2010 : 6 : compensation, he is directed to undergo simple imprisonment for a period of 9 months. 8. As I have already modified and reduced the sentence of imprisonment to 11 days' simple imprisonment there will be a direction to the Jail authorities, Central Prison, Thiruvananthapuram, to release the revision petitioner on his completion of 11 days imprisonment, if he is not required in any other case. Within 3 days from the date of his release from jail, he is directed to execute a bond in the trial court for an amount of Rs.95,000/-, with two solvent sureties to the satisfaction of the court below and on further condition that he will pay the compensation amount within one month from the date of his release from jail. It is made clear that if there occurs any default on the part of this revision petitioner in paying the compensation amount within the above period, the trial court is free to take coercive steps for realization of the compensation amount from him. Crl.R.P.No.1891 of 2010 : 7 : The Registry is directed to send the gist of this order to the Jail authorities, Central Prison, Thiruvananthapuram. V.K.MOHANAN, JUDGE. Jvt