IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 11TH OCTOBER 2010 / 19TH ASWINA 1932 Crl.Rev.Pet.No. 2988 of 2010() ------------------------------ CRA.290/2009 of ADDL. SESSIONS COURT (FAST TRACK-II), PALAKKAD ST.1161/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT, PATTAMBI .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED :- ------------------------------------------------------------------- KHALID, 45 YEARS, S/O. UMMER, CHULLIYIL VALAPPIL VEEDU, PATTITHARA, VIA THRITHALA, PALAKKAD DISTRICT. BY ADVS. SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN RESPONDENT(S)/RESPONDENTS/COMPLAINANT :- ----------------------------------------------------------------------- 1. SREEJESH, S/O. SREEDHARAN, KOLLANAMPATTA VEEDU, KUDALOOR AMSOM DESOM, OTTAPPALAM TALUK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SMT.SUMANGALA P.N. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt V.K.MOHANAN, J. ----------------------------- Crl.R.P.No.2988 of 2010 --------------------------------- Dated this the 11th day of October 2010 O R D E R Challenge in this revision petition is against the conviction and sentence of the revision petitioner under Sec.138 of the Negotiable Instruments Act. 2. The case of the complainant is that the accused/revision petitioner borrowed a sum of Rs.65,500/- from the complainant and towards the discharge of the debt due to the complainant, he issued a cheque dated 15.6.2007 for a sum of Rs.65,500/-, 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 the Negotiable Instruments Act. With Crl.R.P.No.2988 of 2010 -: 2 :- the said allegation, the complainant approached the Judl. First Class Magistrate Court, Pattambi, by filing a formal complaint, upon which cognizance was taken u/s.138 of the Negotiable Instruments Act and instituted S.T.No.1161/2007. During the trial of the case, the complainant himself was examined as PW1 and Exts.P1 to P5 were marked. No evidence 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 held 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 to undergo simple imprisonment for a period of one month and to pay a Crl.R.P.No.2988 of 2010 -: 3 :- compensation of Rs.65,500/- to the complainant u/s.357(3) of Cr.P.C. and the default sentence is fixed as one month simple imprisonment. 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 21.7.2010 in Crl.A.No.290/2009, the Court of Addl. Sessions Judge, Fast Track Court II, Palakkad dismissed the appeal, confirming the conviction and sentence. It is the above conviction and sentence are 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 Crl.R.P.No.2988 of 2010 -: 4 :- find no merit in the revision petition and accordingly the conviction recorded by the courts below against the revision petitioner u/s.138 of the Negotiable Instruments Act, is approved. 6. As this court is not inclined to interfere with the order of conviction recorded by the courts below, the learned counsel for the revision petitioner submitted that the sentence of imprisonment ordered by the court below is unreasonable and exorbitant and the same may be re- considered. Having regard to the facts and circumstances involved in the case and especially in the light of the decision of the Apex Court in Damodar S.Prabhu V. Sayed Babalal H. (JT 2010(4) SC 457) wherein it has held that, in the case of dishonour of cheques, the compensatory aspect of the remedy should be given priority over the punitive aspects. Therefore, the sentence of imprisonment ordered by the court below can be reduced and the revision petitioner can be granted 45 days time to Crl.R.P.No.2988 of 2010 -: 5 :- pay the compensation amount. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner u/s.138 of the Negotiable Instruments Act as recorded by the courts below. Accordingly, the sentence of imprisonment ordered against the revision petitioner is modified and reduced to one day simple imprisonment ie; till the rising of the court. Accordingly, while confirming the order to pay compensation and the default sentence, the revision petitioner is granted 45 days from today to pay the compensation amount and the default sentence fixed by the appellate court will attract only in case of failure on the part of the revision petitioner in paying the compensation amount within the above stipulated period. Accordingly the revision petitioner is directed to appear before the trial court on 18th November, 2010 to receive the modified sentence and to pay the compensation amount. If there is any failure on the part of the revision petitioner in Crl.R.P.No.2988 of 2010 -: 6 :- appearing before the court below and 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. The coercive steps if any, pending against the revision petitioner shall be deferred till 18.11.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, JUDGE. Jvt