IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 12TH AUGUST 2010 / 21ST SRAVANA 1932 Crl.Rev.Pet.No. 2371 of 2010() ------------------------------ CRA.531/2007 of SESSIONS COURT, TRIVANDRUM ST.719/2006 of JUDICIAL FIRST CLASS MAGISTRATE VII, THIRUVANANTHAPURAM. .................... REVISION PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------------------------------------------- G.UNNIKRISHNAN THAMPI, S/O.GOVINDA PILLAI, T.C.64/2065, THIRUVALLAM P.O.,THIRUVANANTHAPURAM. BY ADV. SRI.N.MANU THAMPI RESPONDENT(S): COMPLAINANT/STATE: -------------------------------------------------------------- 1. V.K.RAVEENDRAN ACHARY, ASST. STATION ENGINEER, DOORDARSHAN KENDRA, KUDAPPANAKKUNNU, THIRUVANANTHAPURAM.- 695 043. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 31. R2 BY PUBLIC PROSECUTOR SRI. VENUGOPAL M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ----------------------------------------- Crl.R.P. No. 2371 of 2010 ---------------------------------------- Dated the 12th Day of august 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 both the complainant and the accused are employees of Doordarshan Kendra, Thiruvananthapuram and the accused borrowed a sum of Rs.2,60,000/- from the complainant and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 16.5.2003 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 CRL.R.P. No.2371/10 -:2:- cheque amount in spite of a formal notice caused to issue by him. With the said allegation, the complainant initially approached the court of Addl.Chief Judicial Magistrate, Thiruvananthapuram, whereupon cognizance was taken under Section 138 of the N.I.Act and instituted C.C.No. 390/2004, but subsequently the case was made over to the Judicial First Class Magistrate-VI, Thiruvananthapuram wherein the case was renumbered as S.T.No.719 of 2006. 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 P6 as documentary evidence. No evidence either oral or documentary was 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 CRL.R.P. No.2371/10 -:3:- 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 a period of 10 months and to pay a fine of Rs.10,000/- under section 138 of the NI Act. It is also ordered that on reasliation of the fine amount, the same shall be paid to the complainant under section 357(1)(b) of Cr.P.C. and in default, he is directed to undergo simple imprisonment for a further period of 2 months. 3. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 8.6.2010 in Crl.A.No.531/2007 the court of Sessions Judge, Thiruvananthapuram, allowed the appeal only in part CRL.R.P. No.2371/10 -:4:- and the revision petitioner is sentenced to undergo simple imprisonment for two months and also directed to pay a fine of Rs.10,000/- and the default sentence is fixed as simple imprisonment for a period of two months. It is also ordered that in case of realisation of the fine amount, the entire amount shall be paid to the complainant as compensation under section 357(1)b) of Cr.P.C. Accordingly, the revision petitioner was directed to appear before the trial court on 31.8.2010 to receive the sentence. 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 CRL.R.P. No.2371/10 -:5:- 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 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. As this court is not inclined to interfere with the order of conviction, the learned counsel for the revision petitioner submitted that the sentence of imprisonment ordered by the courts below is highly unreasonable and exorbitant and also submitted that the revision petitioner is ready to compensate the complainant and ready to pay the amount to be fixed CRL.R.P. No.2371/10 -:6:- by this court to the complainant. 6. Having regard to the facts and circumstances involved in the case, especially, when the complainant and the accused are workers of the same establishment, I am of the view that some lenient approach can be taken in the matter of sentence but at the same time, the complainant has to be compensated since the cheque in question is dated 16.5.2003, that too for an amount of Rs.2,60,000/- which belonged to the complainant. 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 settled legal position and in view of the facts and circumstances referred to above, I am of the view that the sentence of imprisonment ordered by the CRL.R.P. No.2371/10 -:7:- court below can be reduced to one day simple imprisonment and the revision petitioner can be directed to pay a sum of Rs. 3 lakhs within a period of three months from today as compensation to the complainant under section 357(3) Cr.P.C. which will be sufficient to meet the ends of justice. In the result, this Crl.R.P is disposed of confirming the conviction recorded by the courts below for the offence under section 138 of the N.I.Act . Accordingly, the sentence of imprisonment ordered by the court below is modified and reduced to simple imprisonment for one day, i.e., till the rising of the court and the revision petitioner is further directed to pay a sum of Rs.3 lakhs ( Rs.Three lakhs only) to the complainant as compensation under section 357(3) Cr.P.C. within three months from today. In case of any default in paying the amount within the stipulate time, the revision petitioner is directed to undergo CRL.R.P. No.2371/10 -:8:- simple imprisonment for a period of three months. Accordingly, the revision petitioner is directed to appear before the trial court on 12th November, 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. This Crl.R.P. is disposed of Accordingly. V.K.MOHANAN, JUDGE. kvm/-