IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2798 of 2010()
1. C.S.RAMADAS, S/O.SWAMINATHAN, AGED 51
... Petitioner
Vs
1. J.SHOUKKATHALI, S/O.JABBAR, AGED 41YEARS
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.K.P.BALAGOPAL
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :23/09/2010
O R D E R
V.K.MOHANAN, J.
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Crl. R.P.No.2798 of 2010
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Dated this the 23rd day of September, 2010.
O R D E R
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 borrowed a sum of Rs.35,000/- and towards the
discharge of the said liability, the accused issued a cheque dated
27.3.2007 for a sum of Rs.35,000/-, which when presented for
encashment dishonoured, as there was no 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 Negotiable Instruments Act. With the said allegation, the
complainant approached the Judl. First Class Magistrate Court-
Chittur, by filing a formal complaint, upon which cognizance was
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taken u/s.138 of Negotiable Instruments Act and instituted
S.T.No.2038/07. During the trial of the case, PW1, the
complainant himself was 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 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 to undergo simple imprisonment for 3
months and also ordered the revision petitioner to pay a sum of
Rs.40,000/- to the complainant as compensation u/s.357(3) of
Cr.P.C., failing which the revision petitioner was directed to
undergo simple imprisonment for 1 month.
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3. Though an appeal was filed, at the instance of the
revision petitioner/accused, by judgment dated 10.8.2010 in
Crl.A.280/09, the Court of Sessions Judge, Palakkad, allowed
the appeal only in part and thus while confirming the conviction,
the sentence imposed against the accused by the trial court is
modified and reduced and in suppression of the sentence
imposed, the appellate court sentenced him to pay a fine of
Rs.36,000/- and in default to undergo simple imprisonment for 1
month. It is also ordered that on realisation of the fine amount, a
sum of Rs.35,000/- shall be paid to the complainant as
compensation u/s.357(1)(b) of Cr.P.C. 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. As this court is not inclined to interfere with the conviction
recorded by the courts below, the learned counsel for the
revision petitioner submitted that, the revision petitioner require
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some breathing time to pay the fine amount. Having regard to
the facts and circumstances involved in the case, I am of the
view that the said submission can be considered favourably.
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 maintaining the order of sentence as modified
and imposed by the appellate court to pay, the fine of
Rs.36,000/- and compensation to the complainant, out of the fine
amount, the revision petitioner is granted 3 months time to pay
the fine amount and it is made clear that the default sentence
fixed by the appellate court will attract only in case of any failure
on the part of the revision petitioner in depositing the fine
amount, within the above extended period. Accordingly, the
revision petitioner is directed to deposit the fine amount on or
before 23.12.2010. In case, any failure on the part of the revision
petitioner in appearing before the court below as directed above
and in paying the fine amount, the trial court is free to take
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coercive steps to secure the presence of the revision petitioner
and to execute the sentence awarded against the revision
petitioner. The execution of warrant if any, pending against the
revision petitioner shall be deferred till 23.12.2010.
Criminal revision petition is disposed of accordingly.
V.K.MOHANAN,
Judge.
ami/