IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2961 of 2010()
1. SUSAN JOSEPH, VETTIMALA HOUSE,
... Petitioner
Vs
1. K.JAYAKUMAR,KURINJIYIL HOUSE,
... Respondent
2. STATE OF KERALA
For Petitioner :SRI.SURIN GEORGE IPE
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :11/10/2010
O R D E R
V.K.MOHANAN, J.
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Crl.R.P.No.2961 of 2010
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Dated this the 11th day of October, 2010.
O R D E R
The challenge in this revision petition is against the
conviction and sentence imposed against the revision petitioner,
who is the accused in a prosecution for the offence punishable
under Sec.138 of the Negotiable Instruments Act.
2. The case of the complainant is that the
accused/revision petitioner borrowed a sum of Rs.1,50,000/-
from the complainant and towards the discharge of the debt due
to the complainant, she issued a cheque dated 10.4.2008 for a
sum of Rs.1,50,000/-, 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 the
Negotiable Instruments Act. With the said allegation, the
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complainant approached the Judicial First Class Magistrate-III,
Kanjirappally, by filing a formal complaint, upon which
cognizance was taken u/s.138 of the Negotiable Instruments Act
and instituted S.T.No.9/2009. During the trial of the case, PW1
was examined from the side of the complainant and Exts.P1 to P9
were marked. From the side of the defence, DW1 was examined
and Exts.D1 & D2 were 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 her debt due to
the complainant. Thus accordingly the court found that, the
complainant has established the case against the
accused/revision petitioner and consequently held that the
accused is guilty and thus convicted her u/s.138 of the
Negotiable Instruments Act. On such conviction, the trial court
sentenced the revision petitioner to undergo simple
imprisonment for 6 months and to pay a compensation of
Rs.1,50,000/- u/s.357(3) of Cr.P.C. and the default sentence is
fixed as two months simple imprisonment.
3. Though an appeal was filed, at the instance of the
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revision petitioner/accused, by judgment dated 19.7.2010 in
Crl.A.No.300/2009, the Court of Sessions Judge, Kottayam
allowed the appeal only in part, while confirming the conviction
of the revision petitioner u/s.138 of the Negotiable Instruments
Act, modified and reduced the sentence of imprisonment. The
order to pay compensation and default sentence were also
confirmed. 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 appellate court. Therefore, I find no merit in this
revision petition and accordingly the conviction recorded by the
courts below against the revision petitioner u/s.138 of the
Negotiable Instruments Act, is approved.
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6. As this court is not inclined to interfere with the order
of conviction recorded by the courts below, the learned counsel
for the revision petitioner submitted that the revision petitioner
requires some time to pay the compensation amount and since
the revision petitioner is also involved in another similar case,
maximum time may be granted to pay the compensation amount.
7. In the light of the facts and circumstances involved in
the case especially that the revision petitioner is a lady, I am of
the view that the above submission of the learned counsel can be
considered positively.
In the result, this revision petition is disposed of
confirming the conviction of the revision petitioner under
Sec.138 of the Negotiable Instruments Act as recorded by the
court below and while confirming the sentence of imprisonment
as ordered by the appellate court and the direction to pay
compensation and the default sentence, the revision petitioner is
granted 45 days time to pay the compensation amount and the
default sentence fixed by the appellate court will be attracted
only in case of failure on the part of the revision petitioner in
paying the compensation amount within 45 days from today.
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Accordingly, the revision petitioner is directed to appear before
the trial court on 18th November, 2010 to receive the sentence
of imprisonment and to pay the compensation amount. If there is
any failure on the part of the revision petitioner in appearing
before the court below and paying the compensation amount the
trial court is free to take coercive steps for execution of the
sentence and for realization of the compensation amount. The
coercive steps if any, pending against the revision petitioner
shall be deferred till 18.11.2010.
Criminal revision petition is disposed of accordingly.
V.K.MOHANAN,
Judge.
Jvt