High Court Kerala High Court

Assainar A. vs Vijayan P. on 7 July, 2010

Kerala High Court
Assainar A. vs Vijayan P. on 7 July, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 1816 of 2010()


1. ASSAINAR A., S/O.BEERAN, AGED 47 YEARS,
                      ...  Petitioner

                        Vs



1. VIJAYAN P., AGED 52 YEARS, S/O.GOVINDAN,
                       ...       Respondent

2. STATE OF KERALA, REPRESENTED BY ITS

                For Petitioner  :SMT.LATHA PRABHAKARAN

                For Respondent  : No Appearance

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

 Dated :07/07/2010

 O R D E R
                    V.K.MOHANAN, J.
                  -----------------------------
                 Crl.R.P.No.1816 of 2010
                ---------------------------------
           Dated this the 7th 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 is that towards the

discharge of a debt due to the complainant, the accused

issued a cheque dated 15.10.2007 for an amount of

Rs.45,000/-, which when presented for encashment

dishonoured for want of 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 punishable

u/s.138 of the Negotiable Instruments Act. With the said

Crl.R.P.No.1816 of 2010

: 2 :

allegation, the complainant approached the Special Judicial

First Class Magistrate (Marad Cases), Kozhikode by filing a

formal complaint, upon which cognizance was taken u/s.138

of the Negotiable Instruments Act and instituted

S.T.No.51/2008. During the course of the trial the

complainant himself examined as PW1 and Exts.P1 to P6

were marked. Though there was no witness examined from

the side of the defence, Ext.D1 was marked. 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 imposed sentence of

simple imprisonment till the rising of the court and also

Crl.R.P.No.1816 of 2010

: 3 :

ordered to pay compensation of Rs.45,000/- to the

complainant under Sec.357(3) of Cr.P.C. and the default

sentence is fixed as simple imprisonment for 3 months.

3. Though an appeal was filed, the same was

dismissed by judgment dated 5.4.2010 in

Crl.A.No.1028/2008 of the court of Addl.District and

Sessions Judge, Fast Track (Adhoc-II) Kozhikode confirming

the conviction and sentence. It is the above conviction and

sentence are 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

Crl.R.P.No.1816 of 2010

: 4 :

appellate court. Therefore, I find no merit in the revision

petition and accordingly the conviction endorsed by the

courts below against the revision petitioner u/s.138 of the

Negotiable Instruments Act is approved.

6. The learned counsel for the revision petitioner

submitted that a breathing time may be granted to the

revision petitioner to deposit the compensation amount.

7. Having regard to the facts and circumstances

involved in the case, I am of the view that the said

submission can be considered favourably but subject to

slight enhancement of the compensation amount since the

cheque is dated 15.10.2007.

In the result, this revision petition is disposed of

confirming the conviction of the revision petitioner under

Sec.138 of the N.I.Act and also confirming the sentence of

imprisonment ordered by the trial court. The compensation

amount is enhanced and the revision petitioner is directed

to pay a sum of Rs.50,000/- to the complainant as

Crl.R.P.No.1816 of 2010

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compensation under Sec.357(3) of Cr.P.C. within 3 months

from today. In case any failure in paying the compensation

within the above stipulated time, the accused/revision

petitioner is directed to undergo simple imprisonment for a

period of 3 months. Accordingly the accused/revision

petitioner is directed to appear before the trial court on 7th

October, 2010 to receive the sentence and to pay the

compensation amount. 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 revision

petitioner.

V.K.MOHANAN, JUDGE.

Jvt