High Court Kerala High Court

Pious Thattil vs Jojo Antony on 3 September, 2010

Kerala High Court
Pious Thattil vs Jojo Antony on 3 September, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 2626 of 2010()


1. PIOUS THATTIL,S/O.JOSEPH
                      ...  Petitioner

                        Vs



1. JOJO ANTONY, S/O. K.P.ANTONY
                       ...       Respondent

2. STATE REPRESENTED BY

                For Petitioner  :SRI.M.B.PRAJITH

                For Respondent  : No Appearance

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

 Dated :03/09/2010

 O R D E R
                    V.K.MOHANAN, J.
                  -----------------------------
                Crl.R.P.No.2626 of 2010
                ---------------------------------
        Dated this the 3rd day of September 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 the

accused/revision petitioner borrowed a sum of Rs.60,000/-

from the complainant and towards the discharge of the debt

due to the complainant, he issued a cheque dated 1.7.2005 for

an amount of Rs.60,000/-, 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

Crl.R.P.No.2626 of 2010

-: 2 :-

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

the said allegation, the complainant approached the Judicial

First Class Magistrate No.II, Thrissur, by filing a formal

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

Negotiable Instruments Act and instituted S.T.No.4112/2005.

During the trial of the case, the complainant himself was

examined as PW1 and Exts.P1 to P6 were marked. No

evidence was 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 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 sentenced the revision

petitioner to undergo simple imprisonment for 3 months and

to pay a compensation of Rs.60,000/- to the complainant

Crl.R.P.No.2626 of 2010

-: 3 :-

u/s.357(3) of Cr.P.C. and the default sentence was fixed as

three months simple imprisonment.

3. Though an appeal was filed, at the instance of the

revision petitioner/accused, by judgment dated 2.8.2010 in

Crl.A.No.788/2008, the Court of Ist Addl. Sessions Judge of

Thrissur allowed the appeal only in part and thus while

confirming the conviction imposed against the revision

petitioner, the sentence is modified and reduced to till the

rising of the court. While maintaining the order of pay

compensation, the default sentence is reduced to 11/2 months.

Accordingly the revision petitioner is directed to appear

before the trial court on 6.9.2010 to receive the sentence.

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 order

of conviction recorded by the courts below, the counsel for

the revision petitioner submitted that, a breathing time may

be granted to the revision petitioner to pay the compensation

Crl.R.P.No.2626 of 2010

-: 4 :-

amount and to receive the sentence. Having regard to the

facts and circumstances involved in the case, I am of the view

that the said submission can be considered favourably and

some time can be granted to pay the compensation amount

but subject to slight enhancement with respect to the

compensation amount since the cheque in question is dated

1.7.2005 and the amount is being with the revision petitioner

for the last 5 years.

In the result, this revision petition is disposed of

confirming the conviction against the revision petitioner

u/s.138 of the Negotiable Instruments Act as recorded by the

courts below and accordingly, the sentence of imprisonment

as modified and fixed by the appellate court is confirmed. The

revision petitioner is further directed to pay a sum of

Rs.67,500/- to the complainant as compensation u/s.357(3) of

Cr.P.C. within three months from today and in case of any

default in paying the amount within the stipulated time, the

revision petitioner is directed to undergo simple

imprisonment for a period of three months. Accordingly, the

Crl.R.P.No.2626 of 2010

-: 5 :-

revision petitioner is directed to appear before the trial court

on 3rd December, 2010 to receive the sentence of

imprisonment and to pay the compensation amount, as fixed

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 payment 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 compensation awarded against the revision

petitioner. The coercive steps, if any, pending against the

revision petitioner shall be deferred till 3.12.2010.

Criminal Revision Petition is disposed of

accordingly.

V.K.MOHANAN, JUDGE.

Jvt