IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 8TH OCTOBER 2010 / 16TH ASWINA 1932 Crl.Rev.Pet.No. 2704 of 2010(C) -------------------------------------- CRA.65/2007 of ADDL. SESSIONS COURT, THRISSUR CC.908/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED ----------------------------------------------------- SATHAYAN V.S, S/O.VALLASSERRY SANKARANARAYANAN, NEAR OLD POLICE STATION LOKAMALESWARAM, KODUNGALLUR. BY ADVS. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENT(S)RESPONDENTS/STATE AND COMPLAINANT --------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2. MANI, W/O.KUNNATHU BHARATHAN EDAVILANGU PO, KODUNGALLUR, THRISSUR DISTRICT. R1 BY PUBLIC PROSECUTOR SMT. P.N. SUMANGALA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SVS/ V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2704 of 2010 ------------------------------------------------ Dated this the 8 th day of October, 2010. O R D E R The accused in a prosecution for the offence under section138 of the Negotiable Instruments Act,1881 (for short ‘the N.I Act’) approached this Court by preferring the above revision petition challenging his conviction and sentence, imposed as per judgments of the trial court as well as the lower appellate court. 2. The case of the 2nd respondent/complainant against the accused/revision petitioner is that towards the discharge of the liability due to the complainant, the accused issued a cheque dated 02.06.2005 for a sum of Rs.1,00,000/-(Rupees One lakh only), which when presented for encashment, was dishonoured for want of sufficient fund in the account maintained by the revision petitioner and the petitioner failed to pay the cheque amount, even though he was requested for the Crl. R.P. No. 2704 /2010 2 same by issuing a statutory notice. With the said allegation, the complainant approached the Court of Judicial Magistrate of First Class, Kodungalloor, whereupon C.C.No.908/2005 was instituted taking cognizance for the offence u/s.138 of Negotiable Instruments Act. During the trial of the above case, the 2nd respondent/complainant adduced his evidence consisting of the documentary evidence such as Exts.P1 to P6 and the oral evidence of himself as PW1. No evidence either oral or documentary was 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 found that, the complainant has established the case against the accused/revision petitioner and consequently, found that the accused is Crl. R.P. No. 2704 /2010 3 guilty and thus he is convicted u/s.138 of Negotiable Instruments Act. On such conviction, the trial court sentenced the revision petitioner/appellant to undergo simple imprisonment for a period of one year and pay a compensation of Rs.1,20,000/- to the complainant under Section 357(3) of Cr.P.C. and the default sentence is fixed as three months simple imprisonment. 3. Though an appeal was filed against the above conviction and sentence, by the revision petitioner/accused, as per judgment dated 09.03.2010 in Crl.A.No.65/2007, the Court of Sessions, Thrissur dismissed the appeal confirming the conviction and the sentence imposed against the revision petitioner u/s. 138 of Negotiable Instruments Act. It is the above conviction, sentence and direction to pay the compensation, challenged in this Crl.R.P. 4. I have heard learned counsel appearing for the revision petitioner and also perused the judgments of Crl. R.P. No. 2704 /2010 4 the courts below. 5. Reiterating the stand taken by the defence during the trial as well as the appellate stage, the learned counsel for the revision petitioner submitted that the complainant has not established the transaction, execution and issuance of the cheque. The above submission is purely on the basis of the facts, evidence and materials on record which are already considered in detail by the trial court as well as the lower appellate court. The petitioner miserably failed to make out a case so as to interfere with such concurrent findings arrived on by the courts below. Therefore, the conviction recorded by the courts below is only required to be approved. I do so. 6. Learned counsel for the revision petitioner submitted that a breathing time may be granted to the revision petitioner to pay the compensation. Having regard to the facts and circumstances involved in the Crl. R.P. No. 2704 /2010 5 case, I am of the view that the said submission can be considered favourably, but subject to slight enhancement in the amount of compensation. 7. 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. Though the cheque in question is dated 02.06.2005, the courts below have fixed the compensation as only Rs.1,20,000/-. Considering the above facts and legal position, I am of the view that, a slight enhancement in the amount of compensation is required. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner u/s.138 of Negotiable Instruments Act as recorded by the courts below. Accordingly, the sentence of imprisonment now ordered by the lower appellate court Crl. R.P. No. 2704 /2010 6 is modified and reduced to one day simple imprisonment that is, till the rising of the court. By maintaining direction to pay the compensation, the amount is enhanced to Rs.1,25,000/- (Rupees One lakh twenty five thousand only) which shall be paid by the revision petitioner within one month from today and in case of any default in paying the amount, the revision petitioner is directed to undergo simple imprisonment for three months and on realisation of the compensation amount, the entire amount shall be paid to the complainant under Section 357(3) of the Cr.P.C. Accordingly, the revision petitioner/accused is directed to appear before the trial court on 08.11.2010 to receive the modified sentence and to deposit the compensation amount. It is made clear that the revision petitioner is free to pay the compensation amount either directly to the complainant or by remitting the same in the trial court. In case any failure on the part Crl. R.P. No. 2704 /2010 7 of the revision petitioner in appearing before the trial court and making the deposit of compensation amount on the above date, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence. Coercive steps, if any, pending against the revision petitioner shall be deferred till 08.11.2010. Criminal revision petition is disposed of accordingly. Sd/- V.K.MOHANAN, Judge. ss/. //True copy// P.A to Judge