IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 26TH JULY 2010 / 4TH SRAVANA 1932 Crl.Rev.Pet.No. 2154 of 2010() ------------------------------ CRA.474/2008 of III ADDL.SESSIONS COURT, KOLLAM ST.1359/2005 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOLLAM .................... PETITIONER/APPELLANT/ACCUSED: ------------------------------------------------------- U.P.THYAGU, S/O.UPENDRAN, CHANDU NIVAS, NJEKKADU, VADASSERIKONAM P.O., VARKALA, THIRUVANANTHAPURAM. BY ADV. SRI.M.TRIPTEN RESPONDENT(S): STATE AND COMPLAINANT: ---------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE DIRECTOR OF PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SHIHAB, S/O.ALIYARKUNJU, KULATHOOR VEEDU, VADAKKUMKARA, KIZAKKEMURI, VAZHAPALLY, UMAYANALLOOR P.O., KOLLAM. R1 BY PUBLIC PROSECUTOR SRI. C.M. NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2154 of 2010 ------------------------------- Dated this the 26th 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 a cheque dated 16.4.2005 for a sum 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 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 said allegation, the complainant approached the Judicial First Class Magistrate Court-II, Kollam, by filing a formal complaint, upon which Crl. R.P.No.2154 of 2010 2 cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.1359/05. During the trial of the case, PW1 the complainant himself, was examined from the side of the complainant and Exts.P1 to P6 were marked. From the side of the defence, DW1 was examined and no documentary evidence was adduced. 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 guilty and thus convicted him u/s.138 of Negotiable Instruments Act. On such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment for 5 months and to pay compensation of Rs.1,20,000/- to the complainant u/s.357(3) of Cr.P.C. and the default sentence is fixed as 5 months simple imprisonment. 3. Though an appeal is filed at the instance of the revision Crl. R.P.No.2154 of 2010 3 petitioner/accused, by judgment dated 12.1.2010 in Crl.A.474/08, the Court of IIIrd Addl. Sessions Judge, Kollam Division, allowed the appeal in part, confirming the conviction of the revision petitioner u/s.138 of Negotiable Instruments Act but the sentence is modified and reduced to till rising of the court and directed the revision petitioner to pay the cheque amount of Rs.1,00,000/- as compensation to the complainant u/s.357(3) of Cr.P.C. and default sentence was fixed as 3 months simple imprisonment. It is the above 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 cheque. But no case is made out to interfere with the concurrent findings of the trial court as well Crl. R.P.No.2154 of 2010 4 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 counsel for the revision petitioner submitted that, some breathing time may be granted to pay the compensation amount. I am of the view that the said submission can be considered but subject to other relevant materials and circumstances involved in the case. 7. 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. In the present case, the cheque in question is dated 16.4.2005, for an amount of Rs.1,00,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.1,00,000/-, which belonged to the complainant, is in the hands of the revision petitioner for the last Crl. R.P.No.2154 of 2010 5 5 years. Considering the above facts and legal position, I am of the view that, the revision petitioner can be granted 3 months time to pay the compensation amount. In the result, this revision petition is disposed of confirming the conviction against the revision petitioner u/s.138 of Negotiable Instruments Act as recorded by the courts below. Accordingly, while confirming the sentence of imprisonment, as modified and fixed by the lower appellate court, the revision petitioner is directed to pay compensation of Rs.1,10,000/- to the complainant, within 3 months from today. In case any default in paying the compensation amount within the stipulated period, the revision petitioner 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 26.10.2010 to receive the sentence and to pay the compensation amount. 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 Crl. R.P.No.2154 of 2010 6 steps to secure the presence of the revision petitioner and to execute the sentence awarded against him. If any coercive steps is pending against the revision petitioner, the same shall be deferred till 26.10.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/