IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1875 of 2010()
1. CHANDRASHEKHARA HOLLA,ART MASTER,
... Petitioner
Vs
1. ANIL KUMAR,S/O.KUMARAN NAIR,
... Respondent
2. STATE OF KERALA,REPRESENTED BY THE
For Petitioner :SRI.T.SETHUMADHAVAN
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :22/06/2010
O R D E R
V.K.MOHANAN, J.
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Crl.R.P.No.1875 of 2010
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Dated this the 22nd day of June 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, who 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 30.12.2007 for
Rs.1,10,000/-, 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, (Addl.
Munsiff), Kasaragod, by filing a formal complaint, upon which
cognizance was taken u/s.138 of Negotiable Instruments Act and
instituted C.C.No.400/08. During the trial of the case, PW1 was
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examined from the side of the complainant and Exts.P1 to P5
were marked. No evidence either oral or documentary 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 found that, the
complainant has established his 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 also directed the revision
petitioner to pay an amount of Rs.1,10,000/- as compensation to
the complainant under Sec.357(3) of Cr.P.C and default sentence
is fixed as one month simple imprisonment.
3. In appeal, at the instance of the revision petitioner/
accused in Crl.A.43/09, by judgment dated 12.3.2010 in the
Court of Sessions, Kasaragod, allowed the appeal only in part
and the sentence of imprisonment reduced to 10 days and while
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confirming the amount of compensation ordered by the trial
court, the default sentence is enhanced to 3 months simple
imprisonment. 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 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 confirmed.
6. The learned counsel submitted that some breathing time
may be granted to the revision petitioner to pay the
compensation amount and also submitted that the sentence of
imprisonment may be set aside. Having regard to the facts and
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circumstances involved in the case, I am of the view that the said
submission can be considered favourably with slight
modifications with respect to the compensation amount.
In the result, this revision petition is disposed of confirming
the conviction against the revision petitioner u/s.138 of
Negotiable Instruments Act as recorded by the trial court as well
as the lower appellate court. Accordingly, the revision petitioner
is sentenced to undergo simple imprisonment till rising of the
court and he is also directed to pay a sum of Rs.1,15,000/- as
compensation to the complainant u/s.357(3) of Cr.P.C. If there is
any failure on the part of the revision petitioner in paying the
compensation, he is directed to undergo simple imprisonment for
a period of 3 months. Accordingly, the revision petitioner is
directed to appear before the trial court on 22nd September,
2010 to pay the compensation amount as directed 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 deposit 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 awarded against the
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revision petitioner. The execution of warrant, if any, is pending
against the revision petitioner, shall be deferred till 22.9.2010.
Criminal revision petition is disposed of accordingly.
V.K.MOHANAN, JUDGE.
Jvt