SUNNY MARKS Vs. JOHN JOY P. AND ANOTHER

JUDGEMENT

(1.) The revision petitioner who is the accused in a prosecution for the offence under Section 138 of the Negotiable Instrument Act, challenges the concurrent finding of the trial court as well as the lower appellate court and the conviction and sentence imposed against him.

(2.) The case of the complainant is that the accused borrowed a sum of Rs. 3,47,000/- on various occasions and on demand for return of the said amount, the accused issued a cheque which when presented for encashment, returned as dishonoured for want of sufficient fund in the account of the accused. Consequently, a statutory notice was sent and though the revision petitioner received the same, no reply was given and no amount was paid. Thus, according to the complainant, the revision petitioner/accused committed an offence punishable under Section 138 of the N.I. Act. With the above allegation, the complainant approached the Judicial First Class Magistrate-III, Kochi by filing a complaint based upon which a cognizance was taken under Section 138 of the N.I. Act and instituted S.T. No. 105/2005. From the side of the complainant, he himself gave evidence as PW1 and produced Exts. P1 to P6 documents. On the side of the defence, Ext.D1 was marked. Based upon the available evidence and materials, the trial court has found that the complainant has succeeded in proving the case. Accordingly, the revision petitioner is convicted under Section 138 of the N.I. Act and sentenced to undergo imprisonment till the rising of the court and to pay a sum of Rs. 3,50,000/- as fine and the default sentence is fixed as simple imprisonment for one month. It is also ordered that if the fine amount is realized, the same shall be given to the complainant under Sec.357(1)(b) of Criminal Procedure Code as compensation. Challenging the above order of conviction and sentence, the revision petitioner has preferred an appeal. But by judgment dated 10.3.2010 in Crl. A. No. 437/2009, the court of Additional Sessions Judge (Adhoc-I), Ernakulam dismissed the appeal confirming the conviction and sentence imposed against the revision petitioner and directed the revision petitioner to appear before the trial court on 31.5.2010 to receive the sentence. It is the above conviction and sentence challenged in this revision petition.

(3.) I have heard the learned counsel appearing for the revision petitioner and also perused the judgments of the courts below.