IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 14TH JULY 2010 / 23RD ASHADHA 1932 Crl.Rev.Pet.No. 2021 of 2010() ------------------------------ CRA.613/2007 of SESSIONS COURT, PALAKKAD ST.4258/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT-III, PALAKKAD .................... REVISION PETITIONER(S): APPELLANTS/ACCUSED: ----------------------------------------------------------------------------- 1. M/S.PALAKKAD KURIES (P)LTD., 11/2(E) MUNICIPAL SHOPPING COMPLEX, PALAKKAD. (BY MANAGING DIRECTOR) 2. SAJI XAVIER, AGED 35 YEARS, MANAGING DIRECTOR, M/S.PALAKKAD KURIES (P)LTD. PALAKKAD. 3. C.P.JAYADEVAN, AGED 45 YEARS, CHAIRMAN, M/S.PALAKKAD KURIES (P) LTD., PALAKKAD. BY ADVS. SRI.P.VIJAYA BHANU, SRI.V.A.JOHNSON (VARIKKAPPALLIL) RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE: --------------------------------------------------------------------------------------------- 1. M.P.VIJAYARAGHAVAN, S/O.LATE RAGHAVA POTHUVAL, MARATHE VEEDU, KODUVAYUR, CHITTUR TALUK, PALAKKAD DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADVS. SRI.BINOY VASUDEVAN, SRI.P.V.MATHEWS, SMT.P.G.BABITHA. R2 BY PUBLIC PROSECUTOR SRI. VENUGOPAL M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ---------------------------------------- Crl.R.P. No. 2021 of 2010 ---------------------------------------- Dated the 14th Day of July 2010 ORDER The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act are the revision petitioners as they are aggrieved by the conviction and sentence imposed against him as per the impugned judgment. 2. The case of the complainant is that the first accused borrowed an amount of Rs.50,000/- from the complainant during the month of September 2002 and when the amount was demanded back, a cheque dated 11.1.2003 for the said amount was issued by accused Nos.1 and 2 which when presented for encashment, dishonoured stating the reason as 'Exceeds arrangement' in the account maintained by the accused and the revision petitioners/accused miserably failed to repay the cheque amount in spite of a formal notice issued by him. With the said allegation, the complainant approached the Judicial First CRL.RP 2021/10 -:2:- Class Magistrate-III, Palakkad, by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted S.T.Case No.4258/2003. 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 P8 as documentary evidence. No evidence adduced from the side of the defence. 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 petitioners-accused and found that they are guilty. Consequently, revision petitioners 2 and 3 who are accused Nos.2 and 3 are convicted under section 138 of the N.I.Act and sentenced to undergo simple imprisonment for a period of one month each for the offence under section 138 of the NIAct and also directed each of them to pay Rs.25,000/- as compensation to the complainant under section 357(3) Cr.P.C. CRL.RP 2021/10 -:3:- No separate sentence is awarded against the first accused, the first revision petitioner. Though the revision petitioners- accused preferred an appeal, by judgment dated 10.10.2009 in Crl.A.No.613/2007, the court of Sessions, Palakkad Division, dismissed the appeal confirming the conviction and sentence passed by the trial court. 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 petitioners-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 petitioners-accused. Though the revision petitioners are heard elaborately, nothing is brought out to take a different view so as to CRL.RP 2021/10 -:4:- 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. The learned counsel for the revision petitioners submitted that a breathing time may be granted to the revision petitioners to receive the sentence and to pay the compensation amount. Having regard to the facts and circumstances involved in this case, I am of he view that the said submission can be considered favourably, but subject to other facts and circumstances in the case. It is also submitted that the sentence awarded against the revision petitioners is excessive and exorbitant and therefore a lenient view may be taken. 5. The cheque in question is dated 11.1.2003 and as per the records and findings of the courts below, which approved by this court, a sum of Rs.50,000/- which CRL.RP 2021/10 -:5:- belong to the complainant is with the revision petitioners for the last seven years. The Apex Court, in its recent decision in Damodar S.Prabhu v. Sayed Babalal H (J.T.2010 (4) SC 457), has held that in a case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. In the light of the above facts and the legal position, I am of the view that the sentence of imprisonment ordered by the courts below can be modified and, at the same time, the compensation amount fixed by the courts below can be enhanced slightly. In the result, this Crl.R.P is disposed of confirming the conviction of the revision petitioners recorded by the courts below for the offence under section 138 of the N.I.Act . Accordingly, the sentence of imprisonment ordered against the revision petitioners 2 and 3 is modified and reduced to one day imprisonment, i.e., till the rising of the court and each of the revision petitioners, namely, revision petitioners 2 and 3/accused Nos. 2 and 3 are directed to pay a compensation of Rs.32,500/- to the complainant under section CRL.RP 2021/10 -:6:- 357(3) Cr.P.C within three months from today. If there is any default in paying the amount, as directed above, they are directed to undergo simple imprisonment for a period of 2 months. Accordingly, the revision petitioners 2 and 3 are directed to appear before the trial court on 14.10.2010 to receive the sentence and to pay the compensation. If there is any default on the part of the revision petitioners in appearing before the trial court as directed above, the trial court is free to take coercive steps against the revision petitioners to secure their presence and to execute the sentence and for realisation of the amount. This Crl.R.P is disposed of as above. V.K.MOHANAN, JUDGE kvm/- CRL.RP 2021/10 -:7:- kvm/- 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 by CRL.RP 2021/10 -:8:- interfering 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. O.P.No. JUDGMENT Dated:.. ........................................ The Apex Court, in its recent decision in Damodar CRL.RP 2021/10 -:9:- S.Prabhu v. Sayed Babalal H (J.T.2010 (4) SC 457), has held that in a case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. In the light of the above settled legal position and in view of the facts and circumstances referred to above, I am of the view that the sentence of imprisonment imposed upon the revision petitioner can be reduced to simple imprisonment till the rising of the court and at the same time, he can be sentenced to pay a fine considering the fact that the amount covered by the cheque in question is with the revision petitioner right from 1.12.2004 and also the said amount can be ordered to be paid as compensation to the complaisant under section 357(1)(b) Cr.P.C. In the result, this Crl.R.P is disposed of confirming the conviction recorded by the trial court as well as the lower appellate court for the offence under section 138 of the N.I.Act . The substantive sentence of imprisonment imposed against the revision petitioner is set aside and he is sentenced to pay a fine of Rs.35,000/- and in default he is directed to undergo simple imprisonment for a period of 6 months and on realisation of the fine amount, the same shall be paid to the complainant under section 357(1)(b) Cr.P.C. Accordingly, the CRL.RP 2021/10 -:10:- revision petitioner is directed to appear before the trial court on 3rd September, 2010. 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 amount. V.K.MOHANAN, JUDGE kvm/- O.P.No. CRL.RP 2021/10 -:11:- JUDGMENT Dated:..