IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 1ST JUNE 2011 / 11TH JYAISHTA 1933 Crl.Rev.Pet.No. 263 of 2003(C) ------------------------------ CRA.96/2000 of ADDL.SESSIONS COURT, THODUPUZHA CC.164/1998 of CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA .................... REVN. PETITIONER APPELLANT/ACCUSED -------------------------------------- JAYAN S/O. SIVASANKARAN NAIR, JAYAN MOTORS, JIJI BHAVAN, THODUPUZHAKARA, THODUPUZHA VILLAGE BY ADV. SRI.A.C.DEVY RESPONDENTS: RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. P.K.MADHUSOODHANAN, KURAVANPARAMBIL HOUSE, PANNIMATTOMKARA, VELLIYAMATTOM VILLAGE, THODUPUZHA TALUK 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, COCHIN-31. ADV. SRI.V.M.KURIAN FOR R1 SRI.MATHEW B. KURIAN FOR R1 SMT.TULASI PANICKER FOR R1 SRI.K.T.THOMAS FOR R1 SRI.C.N.SREEKUMAR FOR R1 R2 BY PUBLIC PROSECUTOR SRI PUZHAKKARA MUHAMMED THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.C. HARI RANI, J. ====================== CRL.R.P.NO. 263 OF 2003 ======================= DATED THIS THE 1ST DAY OF JUNE 2011 ORDER The revision petitioner/accused stands convicted for the offence under Section 138 of the Negotiable Instruments Act. The trial court as per judgment dated 24/5/2000 in C.C.No.164/1998 convicted and sentenced him to undergo rigorous imprisonment for two months and to pay fine of Rs.46,000/- and in default to undergo rigorous imprisonment for two months. If the accused remits the fine amount, Rs.45,000/- from it will be given to the complainant as compensation. The conviction was confirmed by the appellate court and the sentence was modified by directing the revision petitioner/accused to undergo simple imprisonment for one month and to pay fine of Rs.5,000/- and in default to pay the fine CRRP 263/2003 -2- amount, the accused shall undergo simple imprisonment for two weeks and on remittance of the fine amount, an amount of Rs.3,000/- will be given to the complainant towards compensation vide judgment dated 31/10/2002 in Crl.A.No.96/2000. That order has been challenged in this revision. 2. Heard the learned counsel for the revision petitioner, the learned counsel for the first respondent and the learned Public Prosecutor . 3. The learned counsel appearing for the revision petitioner reiterated the contentions in support of the revision. The courts below have concurrently held that the cheque dated 12/1/1998 for Rs.50,000/- was drawn by the revision petitioner in favour of the complainant on the drawee bank, that the cheque was validly presented to the bank, that it was dishonoured due to insufficiency of funds in the account of the accused, that the complainant made a demand for payment by a notice in time in accordance with clause (b) of the proviso to Section 138 of the N.I. Act and that the revision petitioner/accused failed to make the payment within 15 days of receipt of the statutory notice as revealed from Exts.P1 to P4. Both the courts have considered CRRP 263/2003 -3- and rejected the defence set up by the revision petitioner while entering the above finding. The said finding has been recorded on an appreciation of the oral and documentary evidence. I do not find any error, illegality or impropriety in the finding so recorded concurrently by th courts below. The conviction was thus rightly entered against the revision petitioner. 4. Considering the prayer made by the learned counsel for the revision petitioner to modify the sentence of simple imprisonment for one month to imprisonment till rising of court, I am inclined to interfere with the sentence imposed on the revision petitioner to the extent of imprisonment till rising of court and to pay compensation of Rs.46,000/- within three months and in default to undergo simple imprisonment for two months. 5. In the result, a) This revision petition is allowed in part. b)The impugned concurrent verdict of guilty and conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act are confirmed. c) But the sentence imposed is modified and reduced. In supersession of the sentence imposed on the revision petitioner CRRP 263/2003 -4- by the courts below, he is sentenced to undergo imprisonment till rising of court. The revision petitioner is directed under Section 357(3)Cr.P.C.to pay/deposit the amount of Rs.46,000/- within three months as compensation and in default to undergo simple imprisonment for two months. The amount in deposit, if any, and the balance amount if deposited shall be released to the complainant on filing proper application. The petitioner shall have time till 01-09-2011 to pay/deposit the amount of compensation. The petitioner shall appear and his sureties shall produce him before the learned Magistrate on 02-09-2011 for execution of the sentence. Sd/- M.C.HARI RANI, JUDGE ks TRUE COPY P.S. TO JUDGE CRRP 263/2003 -5- M.C. HARI RANI, J. ========================== CRL.R.P.NO.263 OF 2003 ORDER 1/6/2011 =========================== CRRP 263/2003 -6- CRRP 263/2003 -7- CRRP 263/2003 -8- M.C.HARI RANI, J Crl.R.P.No.504 of 2001 CRRP 263/2003 -9- ORDER 17th DAY OF JUNE 2001 CRRP 263/2003 -10- In this revision filed under Section 397 read with Section 401 Cr.P.C. the petitioner who was the accused in C.C.No.164/98 on the file of the chief Judicial Magistrate, thodupuzha challenges the conviction entered and the sentence passed against him for an offence punishable under Section 138 of the Negotiable Instruments Act. M.C. HARI RANI JUDGE ks.