IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 15TH JULY 2010 / 24TH ASHADHA 1932 Crl.Rev.Pet.No. 2070 of 2010() ------------------------------ CRA.93/2006 of ADDL.SESSIONS COURT (ADHOC)III, TRIVANDRUM CC.563/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT-V (SPECIALCOURT FOR MARKLIST CASES),TRIVANDRUM .................... PETITIONER/APPELLANT/ACCUSED: ------------------------------------------------------ C.SADASIVAN, SANTHOSH NILAYAM, PAYATTUVILA P.O., KOTTUKAL (VIA), BALARAMAPURAM, TRIVANDRUM. BY ADV. SRI.SUBHASH SYRIAC RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE: ---------------------------------------------------------------------------------------------- 1. K.SUKUMARAN, THUSHARA, PUNNAKKAMUGAL, ARAMADA P.O., THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, RAM MOHAN PALACE COMPOUND, ERNAKULAM - 18. R2 BY PUBLIC PROSECUTOR SRI. C.M. NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ---------------------------------------- Crl.R.P. No. 2070 of 2010 ---------------------------------------- Dated the 15th Day of July, 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 an amount of Rs.50,000/- was due to the complainant from the accused and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 20.3.2003 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 issued by him. With the said allegation, the complainant CRL.R.P.No.2070/10 -:2:- approached the court of Judicial First Class Magistrate- V, (Special Court for mark list cases), Thiruvananthapuram, by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted C.C..No.563/2004. During the course of trial, the complainant himself mounted to the box and adduced oral evidence as PW1. He has also produced Exts.P1 to P6 as documentary evidence. Though there is no documentary evidence, the accused himself adduced defence evidence as DW1. 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. CRL.R.P.No.2070/10 -:3:- 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 4 months and to pay a compensation of Rs.50,000/-, to the complainant under section 357(3) Cr.P.C and in default of payment of compensation, the accused was sentenced to undergo simple imprisonment for a period of one month. On appeal, by judgment dated 4.5.2010 in Crl.A.No.93/2006, the court of Addl. sessions Judge (Fast Track court III), Thiruvananthapuram, allowed the appeal only in part and thus while confirming the conviction, the sentence of imprisonment is modified and reduced the same to imprisonment till the rising of the court. It is the above conviction and sentence challenged in this Revision Petition. 3. The learned counsel for the revision petitioner submitted that some time may be granted to the CRL.R.P.No.2070/10 -:4:- revision petitioner to receive the sentence and to pay the compensation amount. The cheque in question is dated 20.3.2003 for an amount of Rs.50,000/-. Having regard to the facts and circumstances involved in this case, I am of the view that the said submission can be considered favourably subject to slight enhancement of the compensation amount considering the legal position as per the decision of the Apex Court in Damodar S.Prabhu v. Sayed Babalal H (J.T.2010 (4) SC 457). In the result, this Crl.R.P is disposed of confirming the conviction recorded by the courts below for the offence under section 138 of the N.I.Act . Thus while maintaining the sentence of imprisonment as ordered by the lower appellate court, the Revision petitioner is directed to pay a sum of Rs.65,000/- to the complainant as compensation under section 357(3) Cr.P.C. within three months from CRL.R.P.No.2070/10 -:5:- today and in case of any default in paying the amount within the stipulated time, the Revision petitioner is directed to undergo simple imprisonment for 3 months. Accordingly, the Revision petitioner is directed to appear before the trial court on 15th October, 2010 to receive the sentence and to pay the compensation 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 against the revision petitioner to secure his presence and to execute the sentence. This Crl.R.P is disposed of accordingly. V.K.MOHANAN, JUDGE CRL.R.P.No.2070/10 -:6:- kvm/-