IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2760 of 2009()
1. SHINE JOSE, AGED 32 YEARS,
... Petitioner
Vs
1. A.M.ASHRAF, AGED 51 YEARS,
... Respondent
2. STATE OF KERALA, REP.BY
For Petitioner :SRI.C.K.SREEJITH
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.K.MOHANAN
Dated :21/05/2010
O R D E R
V.K.MOHANAN, J.
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Crl. R.P.No.2760 of 2009
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Dated this the 21st day of July, 2010.
O R D E R
Crl.M.A.No.5540/2010
This petition is filed u/s.482 of Cr.P.C. with a prayer to
restore Crl.R.P.No.2760/09, which was already dismissed for
non-prosecution.
2. Heard the counsels for the revision petitioner as well as
the respondent.
3. The learned counsel for the revision petitioner submitted
that, the amount due to the 1st respondent/complainant, ie., a
sum of Rs.1 lakh, which the courts below ordered to pay as
compensation to the 1st respondent/complainant, is ready and the
dispute is settled out of court. The above submission is not
controverted by the counsel appearing for the respondent.
In the result, this petition is allowed and accordingly the
revision petition is restored.
Crl. R.P.No.2760 of 2009
2
Crl.M.A.No.5314/2010
The counsel for the revision petitioner submitted that, he is
not pressing the above petition and the same is dismissed as not
pressed.
Crl. R.P.No.2760 of 2009
The revision petitioner is the accused in a prosecution for an
offence punishable u/s.138 of Negotiable Instruments Act.
2. The case of the complainant is that the accused obtained
a loan of Rs.1 lakh from the complainant, for the purpose
connected with his contract work and towards the discharge of
the said amount, the accused issued a cheque dated 15.3.2007
for an amount of Rs.1 lakh and when the said cheque
presented for encashment, it was dishonoured as there was no
sufficient fund in the account of the accused to honour the
cheque. Consequently, the complainant caused issue a statutory
notice demanding the revision petitioner to return the amount,
covered by the dishonoured cheque but he failed to pay the
amount and thus he approached the Judicial First Class
Crl. R.P.No.2760 of 2009
3
Magistrate Court-II (Addl. Munsiff), Kasaragod, and cognizance
was taken u/s.138 of Negotiable Instruments Act and instituted
C.C.No.5/08. Finally, the trial court convicted the accused
u/s.138 of Negotiable Instruments Act and sentenced him to
undergo simple imprisonment for 3 months and also directed to
pay compensation of Rs.1 lakh u/s.357(3) of Cr.P.C. to the
complainant and the default sentence is fixed as one month
simple imprisonment.
3. Though an appeal was filed challenging the above
conviction and sentence, by judgment dated 10.7.2009 in
Crl.A.136 of 2008, the Court of Sessions, Kasaragod, allowed the
appeal only in part and the sentence of imprisonment reduced to
10 days, while the compensation and the default sentence
ordered by the trial court were confirmed. It is the above order of
conviction and sentence imposed against the revision petitioner,
by the courts below, challenged in this revision petition.
4. I have carefully perused the judgments of the courts
below and heard the learned counsels appearing for the revision
Crl. R.P.No.2760 of 2009
4
petitioner as well as the respondent. The trial court as well as the
lower appellate court, based upon the facts and circumstances
involved in the case has concurrently found that the cheque in
question was issued by the revision petitioner/accused towards
the discharge of legal liability that due to the complainant.
Though the matter was heard elaborately, nothing is brought on
record to interfere with the concurrent findings of the courts below
and accordingly the conviction recorded by the courts below
against the revision petitioner is confirmed.
5. As this court is not inclined to interfere with the order of
conviction, the learned counsel submitted that the sentence of
imprisonment may be set aside and the revision petitioner may
be permitted to pay the compensation amount to the
respondent/complainant.
6. Having regard to the facts and circumstances involved in
the case, I am of the view that the said submission can be
considered favourably. Thus while confirming the conviction of
the revision petitioner u/s.138 of Negotiable Instruments Act as
Crl. R.P.No.2760 of 2009
5
recorded by the courts below, in modification of the sentence of
imprisonment as ordered by the courts below, the revision
petitioner is sentenced to undergo simple imprisonment for one
day ie., till rising of the court. Towards the payment of the
compensation, the learned counsel for the revision petitioner on
behalf of the revision petitioner/accused handed over a Demand
Draft bearing No.720752 of SBI, Sultan Batheri Branch, dated
16.7.2010, for an amount of Rs.1 lakh, drawn in the name of the
complainant/1st respondent and the learned counsel for the
respondent received the same on behalf of the 1st
respondent/complainant. Therefore the amount ordered by the
courts below and approved by this court, is paid to the
complainant and the same is recorded.
In the result, this Crl. revision petition is disposed as
ordered above and recording satisfaction of payment of
compensation to the complainant u/s.357(3) of Cr.P.C. and
sentencing the revision petitioner to undergo simple
imprisonment for one day ie., till rising of the court, accordingly,
Crl. R.P.No.2760 of 2009
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the revision petitioner is directed to appear before the trial court
on 28.7.2010 to receive the sentence of imprisonment. If there is
any failure on the part of the revision petitioner to appear before
the trial court as directed above, the said court is free to take
coercive steps to ensure the presence of the revision
petitioner/accused and to execute the above sentence.
Criminal revision petition is disposed of accordingly.
V.K.MOHANAN,
Judge.
ami/