IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 29TH JUNE 2010 / 8TH ASHADHA 1932 Crl.Rev.Pet.No. 1945 of 2010() ------------------------------ CRA.143/2007 of ADDL. DISTRICT &SESSIONS COURT (ADHOC), TRIVANDRUM CC.450/2005 of JUDICIAL 1ST CLASS MAGISTRATE COURT V, NEYYATTINKARA. .................... REVISION PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------------------------------------------- N.KRISHNANKUTTY NAIR,PERUNNARATHALA VEEDU, KUNNATHUKAL DESOM,KUNNATHUKAL VILLAGE, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.S.D.ASOKAN RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE: --------------------------------------------------------------------------------------------- 1. B.ANIL KUMAR,S/O.BHASKARAN NAIR, B.R, COTTAGE, NEDIYAMCODE,DHANUVCHAPURAM DESOM, PARASUVAIKKAL VILLAGE,THIRUVANANTHAPURAM DISTRICT 695 001. 2. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM- 35. R2 BY PUBLIC PROSECUTOR SRI. VENUGOPAL.M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ---------------------------------------- Crl.R.P. No.1945 of 2010 ---------------------------------------- Dated the 29th day of June, 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 an amount of Rs.1,00,000/- was due to the complainant from the accused and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 12.10.2004 for an amount of Rs.1,00,000/- 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 issued by him. With the said allegation, the complainant initially approached the court on Judicial First Class Magistrate-II, Neyyattinkara, by filing a proper complaint upon which cognizance was taken under section 138 of the N.I.Act and instituted S.T.No.13/2005. Subsequently, the CRL.A.No.1945/10 -:2:- case was transferred to the Judicial First Class Magistrate Corut-V, Neyyattinkara wherein the case was renumbered as C.C.No.450/2005. 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 P5 as documentary evidence. No evidence, either oral or documentary, produced 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 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 9 months and to pay compensation of Rs.1,05,000/- to the complainant under section 357(3) Cr.P.C and , in default, he is directed to undergo simple imprisonment for a further period CRL.A.No.1945/10 -:3:- of 3 months. 3. Challenging the above order of conviction and sentence, though the revision petitioner had preferred an appeal, by judgment dated 31.3.2010 in Crl.A.No.143/2007, the court of Addl.District & Sessions Judge, Fast Track-1, Thiruvananthapuram, allowed the appeal only in part and thus while confirming the conviction, the sentence is modified and reduced the same to simple imprisonment for 6 months. No interference is made with respect to the order of compensation and default sentence. It is the above orders of the courts below and conviction and sentence challenged in this Revision Petition. 4. 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 CRL.A.No.1945/10 -:4:- 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 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. 5. The learned counsel for the revision petitioner submitted that a breathing time may be granted to the revision petitioner to pay the amount of compensation and also submitted that the sentence of imprisonment may be set aside. 6. Having regard to the facts and circumstances involved in the case, I am of the view that the said prayer can be considered favourably but subject to other facts and circumstances involved in this case. In the present case, the cheque is dated 12.10.2004 for an amount of Rs.1,00,000/-. As per the records and as per the findings of the courts below CRL.A.No.1945/10 -:5:- which approved by this court, a sum of Rs.1,00,000/- belonging to the complainant is with the revision petitioner for the last 6 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. Thus, considering the above facts and settled position of law, I am of the view that while reducing the sentence of imprisonment , the amount of compensation can be enhanced slightly and also the default sentence. 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. Accordingly, the sentence of imprisonment ordered by the lower appellate court is modified and reduced to imprisonment till rising of the court and accordingly, the revision petitioner is directed to pay a sum of Rs.1,15,000/- to the complainant as compensation under section 357(3) Cr.P.C and in default in paying the compensation, he is directed to undergo simple CRL.A.No.1945/10 -:6:- imprisonment for four months. Accordingly, the revision petitioner is directed to appear before the trial court on 29th 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/- CRL.A.No.1945/10 -:7:- O.P.No. JUDGMENT Dated:..