IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 7TH JULY 2010 / 16TH ASHADHA 1932 Crl.Rev.Pet.No. 1618 of 2010() ------------------------------ CRA.346/2008 of I ST ADDL. SESSIONS COURT, THRISSUR CC.474/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR .................... REVN. PETITIONER(S): REVISION PETITIONER/APPELLANT/ACCUSED ---------------------------------------------------------- C.H.SALIM, S/O.HASSAN, CHEMBAYIL HOUSE, DARUL FATNAH, 1409 XII, KOCHI, PANAYAPPILLY WEST. BY ADV. SRI.S.RAJEEV RESPONDENT(S): COMPLAINANTS & STATE ----------------------------------- 1. FATHIMA, W/O.AZEEZ,CHOOKAKADAVIL HOUSE, MENON BAZAR, AZHEEKODE, THRISSUR. 2. STATE OF KERALA, REP. BY PUBLIC PROSOECUTOR , HIGH COURT OF KERALA, ERNAKULAM. BY ADVS. SRI.BABU KARUKAPADATH FOR R1 SMT.M.A.VAHEEDA BABU FOR R1 SRI.JAGAN GEORGE FOR R1 SRI.K.A.NOUSHAD FOR R1 SRI.P.G.PRAMOD FOR R1 SRI.KANDAMPULLY RAHUL FOR R1 SRI.C.M.NAZAR, PUBLIC PROSECUTOR FOR R2. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ami/ V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1618 of 2010 ------------------------------- Dated this the 7th day of July, 2010. O R D E R The accused in a prosecution for an offence u/s.138 of 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, towards the discharge of a debt due to the complainant, issued one cheque dated 25.3.2007 for a sum of Rs.1,00,000/- and another dated 3.4.2007 for a sum of Rs.2,00,000/-, and when the above cheques presented for encashment were dishonoured as there was no sufficient funds in the account maintained by the accused and the cheque amount altogether cover for a sum of Rs.3 lakhs, was not repaid inspite of a formal demand notice and thus the revision petitioner has committed the offence punishable u/s.138 of Negotiable Instruments Act. With the same allegation, the complainant Crl. R.P.No.1618 of 2010 2 approached the Judicial First Class Magistrate Court-I, Kodungalore, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.474/07. During the trial of the case, PW1 was examined from the side of the complainant and Exts.P1 to P7 were marked. From the side of the defence, DW1 was examined and Exts.D1 and D2 were marked. On the basis of the available materials and evidence on record, the trial court has found that the cheques in question were issued by the revision petitioner/accused for the purpose of discharging his debt due to the complainant. Thus accordingly the court has 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 Negotiable Instruments Act. On such conviction, the revision petitioner is sentenced to undergo simple imprisonment for 1 year and to pay a compensation of Rs.3,25,000/- u/s.357(3) of Cr.P.C., but no default sentence is fixed. 3. Though an appeal was filed, by judgment dated 21.8.2009 in Crl.A.No.346/08, the Court of Ist Addl. Sessions Judge, Thrissur, Crl. R.P.No.1618 of 2010 3 dismissed the appeal confirming the conviction and sentence. It is the above judgments and order of conviction and sentence 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 cheques. 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 the revision petition and accordingly the conviction recorded by the courts below against the revision petitioner u/s.138 of Negotiable Instruments Act, is approved. 6. The learned counsel for the revision petitioner submitted that, the sentence awarded is excessive and exorbitant and therefore a lenient view may be taken in the matter and some breathing time may be granted to pay the compensation. According to me, the above submission of the learned counsel Crl. R.P.No.1618 of 2010 4 can be considered favourably but subject to other facts and circumstances involved in the case. Going by the records and the evidence and also the judgments of the courts below, which approved by this court, a sum of Rs.3 lakhs belonged to the complainant is with the revision petitioner for the last 3 years. The apex court in a recent decision reported in Damodar S.Prabhu V. Sayed Babalal H. (JT 2010(4) SC 457) has held that, in the case of dishonour of cheques, the compensatory aspect of the remedy should be given priority over the punitive aspects. Besides the above, in Abbas Vs. Sabu Joseph {2010 (2) KLT 943 (SC)} has held that, “A sentence of imprisonment can be granted for default in payment of compensation u/s.357(3) of Cr.P.C.” Under the above legal and factual position, I am of the view that while reducing the sentence of imprisonment, the compensation amount ordered by the courts below can be enhanced and suitable default sentence can be imposed. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner u/s.138 of Negotiable Instruments Act. Accordingly, the sentence of imprisonment Crl. R.P.No.1618 of 2010 5 ordered by the courts below is reduced to one day, ie., simple imprisonment till rising of the court and the revision petitioner is directed to pay a sum of Rs.3,40,000/-, within 3 months from today, to the complainant as compensation u/s.357(3) of Cr.P.C. and on failure in paying the amount, he is directed to undergo simple imprisonment for a period of 6 months. Accordingly, the revision petitioner is directed to appear before the trial court on 7.10.2010, to pay the compensation amount as directed 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 deposit 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 awarded against the revision petitioner. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/