IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 4TH JUNE 2010 / 14TH JYAISTHA 1932 Crl.Rev.Pet.No. 1597 of 2010() ------------------------------ CRA.129/2008 of ADDL. SESSIONS COURTS (ADHOC), MAVELIKKARA CC.224/2006 of JUDL.MAGISTRATE OF FIRST CLASS, MAVELIKKARA .................... REVN. PETITIONER: PETITIONER ------------------------------- REVI KUMAR, THYSSERIL VEEDU ERENZHA NORTH KANNAMANGALAM. BY ADV. SRI.M.R.SARIN RESPONDENTS: --------------- 1. N.VIJAYN, THATTASSERIL VEEDU EREZHA NORTH KANNAMANGALAM. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.AJAYA KUMAR. G FOR R1 PUBLIC PROSECUTOR SRI.VENUGOPAL.M.R. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl.R.P.No.1597 of 2010 ------------------------------- Dated this the 4th day of June, 2010. O R D E R The accused in a prosecution for the offence u/s.138 of Negotiable Instruments Act is the revision petitioner, who is an employee of BSNL. 2. The case against the revision petitioner is that, he had borrowed a sum of Rs.60,000/- from the complainant and towards the discharge of the said liability he had issued Ext.P1 cheque, which when presented for encashment dishonoured for want of sufficient fund in the account maintained by the accused. The complainant though formally demanded the accused to pay the amount due to him, the same was not acted upon and hence he approached the court of Judicial First Class Magistrate- Mavelikara, by filing a complaint upon which cognizance was taken for the offence u/s.138 of Negotiable Instruments Act and accordingly C.C.No.224/06 was instituted. 3. During the course of trial, the complainant himself was examined as PW1 and he produced Exts.P1 to P6 documents. Crl.R.P.No.1597 of 2010 2 No evidence was adduced from the side of the defence. The trial court found that the complainant has established his case against the accused and accordingly the revision petitioner/accused found guilty u/s.138 of Negotiable Instruments Act. Consequently the accused is convicted u/s.138 of Negotiable Instruments Act and the trial court sentenced him to undergo simple imprisonment for 6 months and also directed him to pay a compensation of Rs.50,000/- to the complainant and in default to undergo simple imprisonment for 2 months. 4. Challenging the above conviction and sentence, though an appeal was filed by the revision petitioner, by judgment dated 6.7.2009 in Crl.A.129/08, the Court of Addl. Sessions Judge, Fast Track (Ad hoc), Mavelikkara, confirmed the conviction but the sentence was modified and accordingly reduced and directed the accused to undergo simple imprisonment for a period of 3 months and also directed him to pay a compensation of Rs.50,000/- and in default to undergo simple imprisonment for 3 months. It is the above conviction and sentence challenged in this revision petition. 5. I have heard the learned counsel appearing for the revision petitioner as well as the counsels for the respondent and Crl.R.P.No.1597 of 2010 3 also perused the judgments of the courts below. 6. The learned counsel for the revision petitioner submitted that, on the basis of the orders issued by this court, the revision petitioner has already deposited a sum of Rs.65,000/- in the court below and considering the above fact of deposit of the amount, and taking a lenient view, it is prayed that the sentence of imprisonment may be set aside. The learned counsel for the respondent/ complainant submitted that, the complainant is interested only in getting the compensatory amount from the revision petitioner connected with the transaction, which is the subject matter of the case. The revision petitioner is a BSNL employee and he had already deposited more than the amount ordered by the courts below. The counsel for the complainant has also submitted that, the complainant is interested only in getting the compensatory amount to the revision petitioner, rather sending him into jail. Both the trial court as well as the lower appellate court, while ordering the compensation, the default sentence was fixed, which according to me is not sustainable in the light of the decision of the apex court in Ahammedkutty Vs. Abdullakoya {2008(1) KLT 851(SC)} Crl.R.P.No.1597 of 2010 4 Beside, the apex court in a recent decision in Damodar S.Prabhu V. Sayed Babalal H. {JT 2010(4) SC 457} has held that, in case of dishonour of cheques, the compensatory aspect of the remedy should be given priority over the punitive aspects. In the light of the above relevant facts and settled position of law, I am of the view that while confirming the conviction of the revision petitioner, the sentence of imprisonment awarded against the revision petitioner can be set aside and he can be sentenced to pay the fine and in case of default in paying the fine amount, he can be directed to undergo simple imprisonment. But in the present case, the petitioner has already deposited a sum of Rs.65,000/-, in terms of the orders passed by this court and the said amount can be considered as fine amount and if that be so, there need not be a further stipulation, for default sentence. In the result, this criminal revision petition is disposed of confirming the conviction of the revision petitioner u/s.138 of Negotiable Instruments Act, as recorded by the trial court as well as the lower appellate court. Accordingly, while setting aside the sentence of imprisonment awarded by the courts below against the revision petitioner, he is sentenced to pay a fine of Rs.65,000/-. As Crl.R.P.No.1597 of 2010 5 he had already deposited a sum of Rs.25,000/- in compliance with the condition stipulated in the order dated 17.5.2010 in Crl.M.A.No.4658/10 of this court and he had deposited a sum of Rs.40,000/- in the trial court as per the order dated 24.5.2010 in Crl.M.A.No.4891/10, the said payment can be treated as deposit of the fine amount, as ordered above. Out of Rs.65,000/- deposited by the revision petitioner, which is now treated as fine as ordered above, a sum of Rs.62,000/- shall be paid to the complainant, the 1st respondent herein, as compensation u/s.357(1)(b) of Cr.P.C. and the remaining Rs.3,000/- shall be paid to the State Exchequer. The trial court is directed to release a sum of Rs.62,000/- to the complainant as and when the complainant makes the application to withdraw such amount. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/