High Court Kerala High Court

Babu.K. vs The Primary Co-Operative … on 1 July, 2010

Kerala High Court
Babu.K. vs The Primary Co-Operative … on 1 July, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 1895 of 2010()


1. BABU.K., S/O.K.C.THOMAS, KIZHAKKE
                      ...  Petitioner

                        Vs



1. THE PRIMARY CO-OPERATIVE AGRICULTURAL &
                       ...       Respondent

2. STATE OF KERALA, REPRESENTED BY THE

                For Petitioner  :SRI.LIJU.V.STEPHEN

                For Respondent  : No Appearance

The Hon'ble MR. Justice V.K.MOHANAN

 Dated :01/07/2010

 O R D E R
                      V.K.MOHANAN, J.
                    -----------------------------
                  Crl.R.P.No.1895 of 2010
                  ---------------------------------
            Dated this the 1st day of July 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, a co-operative bank,

is that the revision petitioner availed a loan of Rs.1,00,000/-

and towards the discharge of the outstanding liability, the

accused issued a cheque dated 4.5.2006 for an amount of

Rs.85,000/-, which when presented for encashment

dishonoured for the reason that there is no sufficient fund

in the account maintained by the revision

petitioner/accused and according to the complainant though

a formal notice was sent demanding the accused to pay the

Crl.R.P.No.1895 of 2010

: 2 :

amount covered by the dishonoured cheque, the same was

not paid and hence the accused has committed the offence

punishable under Sec.138 of the N.I.Act. With the said

allegation the complainant approached the Judicial First

Class Magistrate Court-II, Pathanamthitta and instituted

S.T.No.1323/2006. During the course of the trial, PW1 was

examined and Exts.P1 to P10 were marked from the side of

the complainant. On conviction, the trial court sentenced

the revision petitioner to undergo simple imprisonment for

3 months and also directed to pay a sum of Rs.85,000/- as

fine and in default he is directed to undergo simple

imprisonment for one month. It is also ordered that on

realization of the fine amount, the same shall be given to

the complainant under Sec.357(1) of Cr.P.C. Challenging

the above order of conviction and sentence though an

appeal was filed, by judgment dated 30.1.2010 in

Crl.A.No.96/2008, the lower appellate court allowed the

appeal only in part confirming the conviction but the

Crl.R.P.No.1895 of 2010

: 3 :

sentence was modified. Accordingly, the sentence of

imprisonment ordered by the trial court reduced till the

rising of the court and the lower appellate court converted

the fine amount into compensation under Sec.357(3) of

Cr.P.C. and the default sentence is fixed as simple

imprisonment for 3 months. It is the above conviction and

sentence challenged in this revision petition.

3. The learned counsel for the revision petitioner

submitted that a breathing time may be granted to the

revision petitioner to pay the compensation amount.

According to me, the said submission can be considered

favourably.

In the result, this revision petition is disposed of

confirming the conviction recorded by the courts below

against the revision petitioner under Sec.138 of the N.I.Act

and while confirming the sentence of imprisonment as

modified and ordered by the lower appellate court and also

confirming the order for compensation and the default

Crl.R.P.No.1895 of 2010

: 4 :

sentence, the revision petitioner is directed to make the

payment within 3 months from today. Accordingly, the

revision petitioner is directed to appear before the trial

court on 2nd September, 2010 to receive the sentence and

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 and

direction for compensation awarded against the revision

petitioner.

V.K.MOHANAN, JUDGE.

Jvt