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.
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Crl.R.P.No.1816 of 2010
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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
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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
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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
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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
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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