IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2958 of 2010()
1. P.V.MOHAN, S/O.VELAYUDHAN,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. SABIN XAVIER, S/O.XAVIER,
For Petitioner :SRI.T.RAJESH
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :08/10/2010
O R D E R
V.K.MOHANAN, J.
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Crl. R.P. No. 2958 of 2010
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Dated this the 8th day of October, 2010.
J U D G M E N T
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 received Rs.1,00,000/- from the
complainant towards the sale consideration of gas
cylinders, he issued a cheque dated 05.06.2007 for a sum of
Rs.1,00,000/- (Rupees One lakh 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
said allegation, the complainant approached the Court of
Judicial Ist Class Magistrate-II, Kochi by filing a formal
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complaint, upon which cognizance was taken u/s.138 of
Negotiable Instruments Act and instituted
C.C.No.2096/2007. During the trial of the case complainant
himself was examined as PW1 and Exts.P1 to P5 were
marked. No evidence on the side of the defense, either
documentary or oral. 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/accused to undergo
simple imprisonment for a period of six months and also
directed to pay a fine of Rs.1,03,000/-. It is also ordered
that if the fine amount is realized, an amount of
Rs.1,00,000/- shall be paid to the complainant as
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compensation u/s.357(1) of Cr.P.C and the default sentence
is fixed as 45 days simple imprisonment.
3. Aggrieved by the above order of conviction and
sentence, the revision petitioner had approached the
appellate court by Judgment dated 03.07.2010 in Crl.Appeal
No.34/2010, the Court of The IV Addl. Sessions Judge,
Ernakulam, allowed the appeal only in part, confirming the
conviction. But the sentence is reduced into imprisonment
of one day i.e till the rising of the court. But the sentence to
pay of the fine, default sentence and provision for payment
of compensation awarded by the trial court are confirmed.
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
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trial court as well as the lower appellate court.
6. As this court is not inclined to interfere the order of
conviction, the learned counsel for the revision petitioner
submitted that some breathing time may be granted to the
revision petitioner to pay the fine amount. I am of the view
that the said submission can be considered favourably and
granted 45 days time to deposit the fine 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
courts below. Accordingly, while confirming the sentence
of imprisonment and the sentence to pay the fine amount,
revision petitioner is granted 45 days time from today to
pay the fine amount and it is made clear that the default
sentence fixed by the trial court will be attracted only in
case of default in paying the fine amount within 45 days
from today. Accordingly, the revision petitioner is directed
to appear before the trial court on 24.11.2010 to receive the
modified sentence and to deposit the fine amount. If there is
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any default in paying the fine amount, the trial court is free
to take coercive steps to execute the sentence and to realize
the fine amount.
Criminal revision petition is disposed of accordingly.
Sd/-
V.K.MOHANAN,
Judge.
ss/.
//True copy//
P.A to Judge