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. 1947 of 2010() ------------------------------ CRA.318/2007 of ADDL.SESSIONS COURT,-I, MAVELIKKARA CC.848/2006 of JUDL.MAGISTRATE OF FIRST CLASS, KAYAMKULAM .................... REVN.PETITIONER/APPELLANT/ACCUSED :- ------------------------------------------------------ RAJESH, S/O. JANARDHANAN PILLAI, PACHAMKULATHU HOUSE, KATTACHIRA MURI, BHARANIKAVU VILLAGE. BY ADV. SRI.RASHEED C.NOORANAD RESPONDENT(S)/RESPONDENT/COMPLAINANT :- ------------------------------------- 1. K.M.HANEEFA, S/O. KOYAKUTTY, ELAVANAYYATHU HOUSE, CHERAVALLY MURI, KAYAMKULAM VILLAGE. 2. STATE OF KERALA, REP. BY GOVT. PLEADER, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR.M.R.VENUGOPAL THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ~~~~~~~~~~~~ Crl.R.P.No.1947 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 the 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 towards the discharge of a debt due to the complainant, the accused issued a cheque dated 19.9.2006 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 cheque amount was not repaid in spite of a formal demand notice and thus the revision petitioner has committed the offence punishable u/s.138 of the Negotiable Instruments Act. With the said Crl.R.P.No.1947 of 2010 : 2 : allegation, the complainant approached the Judicial First Class Magistrate, Kayamkulam by filing a formal complaint, upon which cognizance was taken u/s.138 of the Negotiable Instruments Act and instituted C.C.No.848/2006. During the course of the trial the complainant himself examined as PW1 and produced Exts.P1 to P6 documentary evidences. No evidence either oral or documentary adduced from the side of the defence. On the basis of the available materials and evidence on record, the trial court has found that the cheque in question was issued by the revision petitioner/accused for the purpose of discharging his debt due to the complainant. Thus accordingly the court 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 the Negotiable Instruments Act. On such conviction, the trial court sentenced the revision petitioner/accused to undergo simple imprisonment for one year and also directed to pay Rs.1,00,000/- as compensation to the complainant under Sec.357(3) of Cr.P.C. and default Crl.R.P.No.1947 of 2010 : 3 : sentence is fixed as two months simple imprisonment. 3. Though an appeal was filed challenging the above conviction and sentence, by judgment dated 29.1.2008 in Crl.A.No.318/2007, the court of Additional Sessions Judge-I, Mavelikara dismissed the appeal confirming the conviction and sentence imposed against the revision petitioner by the trial court. It is the above judgments of the court below and the conviction and sentence are challenged in this revision petition. 4. The learned counsel for the revision petitioner submitted that the amount due to the complainant has already settled by paying substantial amount and he seeks only time to pay the remaining balance amount. It is the submission of the learned counsel that the amount can be deposited within two weeks from today. 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 but subject to other facts and circumstances involved in the case. As per the records and Crl.R.P.No.1947 of 2010 : 4 : findings of the courts below, which approved by this Court, a sum of Rs.1,00,000/- belonging to the complainant is with the revision petitioner for the last 4 years. The Apex Court in the decision in Damodar.S.Prabhu v. Sayed Babalal.H [J.T. 2010 (4) SC 457] has held that in the case of dishonour of cheques, the compensatory aspect of the remedy shall be given preference than the punitive aspect. Considering the above facts and circumstances and the above settled position of law, I am of the view that some time can be granted to the revision petitioner to pay the amount. But this Court is not in a position to enter into any finding regarding the discharge claimed by the petitioner. In the result, this revision petition is disposed of confirming the conviction as recorded by the trial court against the revision petitioner under Sec.138 of the N.I.Act. Accordingly, the sentence of imprisonment ordered by the court below is set aside and the revision petitioner is directed to pay a sum of Rs.1,00,000/- to the complainant as compensation under Sec.357(3) of Cr.P.C. within two weeks Crl.R.P.No.1947 of 2010 : 5 : from today and in case any failure in paying the amount as directed above, the revision petitioner is directed to undergo simple imprisonment for 2 months. The revision petitioner is free to pay the above amount of compensation to the complainant either directly or by remitting the same in the trial court, whatever subject to the satisfaction of the learned Magistrate. Accordingly, the revision petitioner is directed to appear before the trial court on 20th July, 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 paying the 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. V.K.MOHANAN, JUDGE. Jvt