Kerala High Court
V.A.Anandakumar vs State Of Kerala Represented By on 17 September, 2010
Author: V.K.Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2011 of 2010()
1. V.A.ANANDAKUMAR, S/O.ACHUTHAN NAIR,
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY
... Respondent
2. RAJESH, S/O.RAMACHANDRAN,
For Petitioner :SRI.RAJIT
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :17/09/2010
O R D E R
V.K.MOHANAN, J.
------------------------------------------
Crl.R.P. No. 2011 of 2010
----------------------------------------
Dated the 17th September, 2010
ORDER
The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the revision petitioner as he is aggrieved by the conviction and sentence imposed against him as per the impugned judgment.
2. The case of the complainant is that the accused borrowed an amount of Rs.4,50,000/- from him and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 10.8.2002 for Rs.4.50,000/- which when presented for encashment, dishonoured as there was no sufficient fund in the account maintained by the accused and the revision petitioner/accused miserably failed to repay the cheque amount in spite of a formal notice caused to issue by him. With the said allegation, the complainant approached the Judicial First Class Magistrate, Chavakkad, by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted C.C.No.347/2003. During the course of trial, the complainant himself mounted to the box and adduced oral evidence as PW1. He has also produced Exts.P1 to P6 as CRL.R.P.No.2011/10 -:2:- documentary evidence. From the side of the defence, no evidence either oral or documentary was produced. After evaluation of the evidence and the materials on record, the trial court has found that Ext.P1 cheque was issued towards the discharge of a legally enforceable debt that due to the complainant and accordingly, the trial court held that the complainant has succeeded in establishing the allegation against the revision petitioner-accused and found that the revision petitioner-accused is guilty. Consequently, the accused is convicted under section 138 of the N.I.Act. On such conviction, the trial court sentenced the revision petitioner-accused to undergo simple imprisonment for three months and to pay compensation of Rs.4,50,000/- to the complainant under section 357(3) Cr.P.C., in default, he is directed to undergo simple imprisonment for three months. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 28.4.2010 in Crl.A.No.574/2006, the court of Addl. Sessions Judge, Thrissur (Fast Track Court No.II- Adhoc), allowed the appeal only in part. Thus while confirming the conviction of the revision petitioner under section 138 of the NI Act, the sentence is modified and reduced to one day simple imprisonment, i.e. till the rising of the CRL.R.P.No.2011/10 -:3:- court and also directed to pay compensation of Rs.4,50,000/- to the complainant. Default sentence is fixed as three months simple imprisonment. It is the above judgments of the trial court as well as the lower appellate court challenged in this Crl.R.P.
3. Reiterating the contention taken by the defence during the trial and appellate stages, the learned counsel submitted that the complainant has not established the transaction, execution and issuance of the cheque and therefore, the courts below are absolutely wrong in convicting the revision petitioner-accused imposing sentence against him. The trial court as well as the lower appellate court has concurrently found in favour of the complainant and against the revision petitioner-accused. Though the revision petitioner is heard elaborately, nothing is brought out to take a different view to interfere with the concurrent findings of the courts below. All the contentions are based upon the facts and evidence on record which were elaborately considered by the courts below. Therefore, I find no reason to interfere with such concurrent finding of the courts below and accordingly, the conviction recorded by the courts below is confirmed.
4. As this Court is not inclined to interfere with the order of conviction passed by the courts below, the learned counsel for the CRL.R.P.No.2011/10 -:4:- revision petitioner submitted that a breathing time may be granted to the revision petitioner to pay the compensation amount.
5. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered favourably.
6. In this juncture, it is relevant to note that while disposing of the appeal, the appellate court directed the revision petitioner/appellant to appear before the trial court on 5.7.2010 to receive the sentence and to pay the compensation amount. Though the appellate court disposed of the appeal on 28.4.2010, no appeal or revision is seen filed at the instance of the complainant for enhancement of the amount fixed by the courts below. Under the above facts and circumstances, I am of the view that this Crl.R.P. can be disposed of granting one month time to the revision petitioner for his appearance in the court below to receive the sentence and to pay the compensation amount.
In the result, this Crl.R.P is disposed of confirming the conviction recorded by the courts below for the offence under section 138 of the N.I.Act. Thus while confirming the conviction of the revision petitioner under section 138 of the NI Act and confirming the sentence of imprisonment as modified and fixed by CRL.R.P.No.2011/10 -:5:- the appellate court, the revision petitioner is granted one month time to appear before the trial court. Accordingly, the revision petitioner is directed to appear before the trial court on 18th October, 2010 to receive the sentence and to pay the compensation amount fixed by the courts below. The default sentence imposed will attract only if there is any default on the part of the revision petitioner in appearing before the trail court on 18.10.2010 and to deposit the compensation amount on that day. If there is any default on the part of the revision petitioner in appearing before the trial court as directed above, the trial court is free to take coercive steps against the revision petitioner to secure his presence and to execute the sentence and for realisation of the compensation amount. Coercive steps if any pending against the revision petitioner shall be deferred till 18.10.2010.
This Crl.R.P is disposed of accordingly.
V.K.MOHANAN, JUDGE kvm/-
CRL.R.P.No.2011/10 -:6:- kvm/-