IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2697 of 2010()
1. VISWANATHAN, S/O.SREEDHARAN,
... Petitioner
Vs
1. SREE GOKULAM CHITS & FINANCE CO.(P) LTD.
... Respondent
2. KERALA STATE, REPRESENTED BY THE
For Petitioner :SRI.THYPARAMBIL THOMAS THOMAS
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :13/09/2010
O R D E R
V.K.MOHANAN, J.
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Crl. R.P.No.2697 of 2010
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Dated this the 13th day of September, 2010.
O R D E R
The accused in a prosecution for an offence u/s.138 of
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, towards the discharge of a debt
due to the complainant, issued a cheque dated 26.08.2002
for a sum of Rs.20,650/- (Rupees Twenty thousand six
hundred and fifty only), which when presented for
encashment dishonoured and the cheque amount was not
repaid inspite of a formal demand notice and thus the
revision petitioner has committed the offence punishable
u/s.138 of Negotiable Instruments Act. With the same
allegation, the complainant approached the Judicial First
Class Magistrate Court-II, Kollam, by filing a formal
complaint, upon which cognizance was taken u/s.138 of
Crl. R.P.No.2697/2010
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Negotiable Instruments Act and instituted S.T.No.597/2000.
During the trial of the case, PW1 was examined from the
side of the complainant and Exts.P1 to P7 were marked. No
evidence either oral or documentary adduced from the side
of the defense. 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 found
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
Negotiable Instruments Act. On such conviction, the trial
court sentenced the revision petitioner to undergo simple
imprisonment for 30 days and to pay a compensation of
Rs.25,000/- to the complainant u/s. 357(3) of Cr.P.C and the
default sentence is fixed as 30 days imprisonment. It is also
ordered that on realisation of fine amount, it shall be paid
to the complainant.
Crl. R.P.No.2697/2010
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3. In appeal, at the instance of the revision petitioner/
accused, by judgment dated 10.06.2010 in Crl.A.482/2008
the Court of Second Addl. Sessions Judge, Kollam,
dismissed the appeal but the sentence was modified to the
effect that the appellant has to pay Rs.20,650/- as fine and
the appellant has to undergo simple imprisonment till rising
of the court. In default of paying the fine amount, the
accused is directed to undergo simple imprisonment for 7
days. It is also ordered that on realisation of the fine
amount, the same shall be paid to the complainant as
compensation. It is the above conviction and sentence
challenged in this revision petition.
4. I have heard the learned counsel appearing for the
revision petitioner and also perused the judgments of the
courts below.
5. Reiterating the stand taken by the accused/revision
petitioner during the trial and appeal, submitted that the
complainant has not established the transaction and also
the execution and issuance of the cheque. But no case is
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made out to interfere with the concurrent findings of the
trial court as well as the lower appellate court. Therefore, I
find no merit in the revision petition and accordingly the
conviction recorded by the courts below against the
revision petitioner u/s.138 of Negotiable Instruments Act is
approved.
6. As this court is not inclined to interfere with the
conviction, the counsel for the revision petitioner submitted
that, some breathing time may be granted to the revision
petitioner to pay the fine amount. Having regard to the
facts and circumstances involved in this case, I am of the
view that the said submission can be considered favourably
and one month time can be granted to pay the fine amount.
In the result, the conviction of the revision petitioner
u/s.138 of Negotiable Instruments Act is confirmed as
recorded by the courts below. Accordingly, the sentence of
imprisonment as modified and fixed by the appellate court
is also confirmed. Thus while confirming the sentence to
pay the fine of Rs.20,650/- the petitioner is granted one
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month time to pay the fine amount and the default sentence
fixed by the appellate court will attract only if there is
failure on the part of the revision petitioner in depositing
the fine amount within one month from today. But default
sentence is enhanced to one month simple imprisonment.
Accordingly, the revision petitioner is directed to appear
before the trial court on 13.10.2010 to receive the sentence
of imprisonment and deposit the fine amount. If any failure
on the part of the revision petitioner in appearing before
the court below as directed above and in making the
payment of fine amount, the trial court is free to take
coercive steps to secure the presence of the revision
petitioner and to execute the sentence awarded against the
revision petitioner till 13.10.2010.
Criminal revision petition is disposed of accordingly.
Sd/-
V.K.MOHANAN,
Judge.
ss/.
//True copy//
P.A to Judge