IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 22ND JUNE 2010 / 1ST ASHADHA 1932 Crl.Rev.Pet.No. 1869 of 2010() ---------------------------- CRA.48/2009 of SESSIONS COURT, KASARAGOD CC.401/2008 of JUDL. IST CLASS MAGISTRATE-II,KASARGOD .................... REVN. PETITIONER(S): (APPELLANT/ACCUSED) ---------------------------------------- CHANDRASHEKHARA HOLLA,ART MASTER, S.V.S.JUNIOR COLLEGE,KATTAPADY,UDUPPI.P.O, MANGALORE VIA,KARNATAKA STATE. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR RESPONDENT(S): (RESPONDENT/COMPLAINANT & STATE) ----------------------------------------------- 1. PRAVEEN.G,S/O.GOPALAN,GANESH HOUSE, MULLERIA.P.O,KASARAGOD TALUK AND DISTRICT. 2. STATE OF KERLA, REPRESENTED BY THE DIRECTOR OF PUBLIC PROSECUTIONS,HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR MR.VENUGOPAL M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/06/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1869 of 2010 ------------------------------- Dated this the 22nd day of June, 2010. O R D E R The accused in prosecution for an offence u/s.138 of Negotiable Instruments Act is the revision petitioner, who 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 30.12.2007 for Rs.1,05,000/-, which when presented for encashment dishonoured 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 same allegation, the complainant approached the Judicial First Class Magistrate Court-II, (Addl. Munsiff), Kasaragod, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.401/08 by judgment dated 17.1.2009. Crl. R.P.No.1869 of 2010 2 During the trial of the case, PW1 was examined from the side of the complainant and Exts.P1 to P6 were marked. 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 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 3 months and to a sum of Rs.1,05,000/- as compensation u/s.357(3) of Cr.P.C, which when realised, ordered to pay to the complainant. The default sentence is fixed as 1 month simple imprisonment. 3. In appeal, at the instance of the revision petitioner/ accused in Crl.A.48/09, by judgment dated 12.3.2010 in the Crl. R.P.No.1869 of 2010 3 Court of Sessions, Kasaragod, confirmed the conviction of the revision petitioner u/s.138 of Negotiable Instruments Act. Whereas the sentence of imprisonment reduced to 10 days and while maintaining the compensation amount, the default sentence is enhanced to 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 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 Crl. R.P.No.1869 of 2010 4 Instruments Act, is confirmed. 6. The learned counsel submitted that some breathing time may be granted to the revision petitioner to pay the compensation amount and also submitted that the sentence of imprisonment may be set aside. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered favourably with slight modifications with respect to the compensation amount. 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 for an amount of Rs.1,05,000/-. Thus as per the records, as on today and the findings of the courts below, which approved by this court, a sum of Rs.1,05,000/- belonged to the complainant is in the hands of the revision petitioner for the last 2 ½ years. Considering the above facts and legal position, I am of the view Crl. R.P.No.1869 of 2010 5 that the sentence of imprisonment can be reduced but the fine amount ordered by the courts below can be enhanced and the revision petitioner can be granted 3 months time to pay the fine 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 trial court as well as the lower appellate court. Accordingly, the revision petitioner is sentenced to undergo simple imprisonment till rising of the court and he is also directed to pay a sum of Rs.1,10,000/- as compensation to the complainant u/s.357(3) of Cr.P.C. If there is any failure on the part of the revision petitioner in paying the compensation, he is directed to undergo simple imprisonment for a period of 3 months. Accordingly, the revision petitioner is directed to appear before the trial court on 22.9.2010 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 making the deposit of Crl. R.P.No.1869 of 2010 6 fine 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. The execution of warrant if any is pending against the revision petitioner, shall be deferred till 22.9.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/