IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2626 of 2010()
1. PIOUS THATTIL,S/O.JOSEPH
... Petitioner
Vs
1. JOJO ANTONY, S/O. K.P.ANTONY
... Respondent
2. STATE REPRESENTED BY
For Petitioner :SRI.M.B.PRAJITH
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :03/09/2010
O R D E R
V.K.MOHANAN, J.
-----------------------------
Crl.R.P.No.2626 of 2010
---------------------------------
Dated this the 3rd day of September 2010
O R D E R
The accused in a prosecution for an offence u/s.138 of
the Negotiable Instruments Act is the revision petitioner, as
he is aggrieved by the order of conviction and sentence
imposed by the courts below.
2. The case of the complainant is that the
accused/revision petitioner borrowed a sum of Rs.60,000/-
from the complainant and towards the discharge of the debt
due to the complainant, he issued a cheque dated 1.7.2005 for
an amount of Rs.60,000/-, which when presented for
encashment dishonoured, as there was no sufficient fund in
the account maintained by the accused and the cheque
amount was not repaid inspite of a formal demand notice and
thus the revision petitioner has committed the offence
Crl.R.P.No.2626 of 2010
-: 2 :-
punishable u/s.138 of the Negotiable Instruments Act. With
the said allegation, the complainant approached the Judicial
First Class Magistrate No.II, Thrissur, by filing a formal
complaint, upon which cognizance was taken u/s.138 of the
Negotiable Instruments Act and instituted S.T.No.4112/2005.
During the trial of the case, the complainant himself was
examined as PW1 and Exts.P1 to P6 were marked. No
evidence was adduced from the side of the defence. 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 3 months and
to pay a compensation of Rs.60,000/- to the complainant
Crl.R.P.No.2626 of 2010
-: 3 :-
u/s.357(3) of Cr.P.C. and the default sentence was fixed as
three months simple imprisonment.
3. Though an appeal was filed, at the instance of the
revision petitioner/accused, by judgment dated 2.8.2010 in
Crl.A.No.788/2008, the Court of Ist Addl. Sessions Judge of
Thrissur allowed the appeal only in part and thus while
confirming the conviction imposed against the revision
petitioner, the sentence is modified and reduced to till the
rising of the court. While maintaining the order of pay
compensation, the default sentence is reduced to 11/2 months.
Accordingly the revision petitioner is directed to appear
before the trial court on 6.9.2010 to receive the sentence.
4. I have heard the learned counsel appearing for the
revision petitioner and also perused the judgments of the
courts below.
5. As this court is not inclined to interfere with the order
of conviction recorded by the courts below, the counsel for
the revision petitioner submitted that, a breathing time may
be granted to the revision petitioner to pay the compensation
Crl.R.P.No.2626 of 2010
-: 4 :-
amount and to receive the sentence. Having regard to the
facts and circumstances involved in the case, I am of the view
that the said submission can be considered favourably and
some time can be granted to pay the compensation amount
but subject to slight enhancement with respect to the
compensation amount since the cheque in question is dated
1.7.2005 and the amount is being with the revision petitioner
for the last 5 years.
In the result, this revision petition is disposed of
confirming the conviction against the revision petitioner
u/s.138 of the Negotiable Instruments Act as recorded by the
courts below and accordingly, the sentence of imprisonment
as modified and fixed by the appellate court is confirmed. The
revision petitioner is further directed to pay a sum of
Rs.67,500/- to the complainant as compensation u/s.357(3) of
Cr.P.C. within three months from 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 a period of three months. Accordingly, the
Crl.R.P.No.2626 of 2010
-: 5 :-
revision petitioner is directed to appear before the trial court
on 3rd December, 2010 to receive the sentence of
imprisonment and to pay the compensation amount, as fixed
by this court. In case any failure on the part of the revision
petitioner in appearing before the court below as directed
above and in making the payment of compensation amount,
the trial court is free to take coercive steps to secure the
presence of the revision petitioner and to execute the
sentence and compensation awarded against the revision
petitioner. The coercive steps, if any, pending against the
revision petitioner shall be deferred till 3.12.2010.
Criminal Revision Petition is disposed of
accordingly.
V.K.MOHANAN, JUDGE.
Jvt