IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 9TH SEPTEMBER 2010 / 18TH BHADRA 1932 Crl.Rev.Pet.No. 2683 of 2010() -------------------------- CRA.169/2009 OF ADDL. SESSIONS COURT (FAST TRACK-II), ALAPPUZHA CC.754/2006 OF JUDL. FIRST CLASS MAGISTRATE COURT - II, CHERTHALA ...................................... REVISION PETITIONER / APPELLANT / ACCUSED : --------------------------------------------------------------------- V.N.BABY, S/O.NARAYANAN, AGED 42, UDAYANILAM HOUSE, KURUPPANKULANGARA P.O., CHERTHALA. BY ADV. SRI. JOBY CYRIAC RESPONDENTS / RESPONDENTS / COMPLAINANT & STATE : ------------------------------------------------------------------------------------- 1. ANTONY VARGHESE, S/O.VARGHESE, AGED 29, MANAPARAMBIL HOUSE, KURUPPANKULANGARA P.O., CHERTHALA-686539. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. V. TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn V.K.MOHANAN, J. ----------------------------------------- Crl.R.P. No. 2683 of 2010 ---------------------------------------- Dated the 9th day of September, 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 in order to discharge a liability due to the complainant, the accused issued a cheque dated 28.12.2005 for Rs.30,000/- 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 cheque amount in spite of a formal notice caused to issue by him. With the said allegation, the complainant approached the Judicial First Class Magistrate-II, Cherthala by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted C.C.No.754/2006. During the course of trial, the complainant himself mounted to the box and adduced oral evidence as PW1. He has also produced CRL.R.P. 2683/10 :-2-: Exts.P1 to P7 as documentary evidence. From the side of the defence, no evidence either oral or documentary was produced. 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 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 3 months and to pay a sum of Rs.30,000/- as compensation to the complainant under section 357(3) Cr.P.C. No default sentence is fixed by the trial court. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 21.7.2010 in Crl.A.No.169/2009, the court of Addl. Sessions Judge, (Fast Track-II), Alappuzha, dismissed the appeal confirming the conviction and sentence CRL.R.P. 2683/10 :-3-: imposed by the trial court. It is the above judgments of the trial court as well as the lower appellate court challenged in this Crl.R.P. 3. 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 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. CRL.R.P. 2683/10 :-4-: 4. 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 unreasonable and exorbitant and some breathing time may be granted to the revision petitioner to pay the compensation amount. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered favourably, but subject to other relevant facts and circumstances of this case. 5. As per the records, the cheque in question is dated 28.12.2005 for an amount of Rs.30,000/- and thus the amount belongs to the complainant is with the revision petitioner for the last 5 years. Of course, 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. Therefore, considering the settled legal position and in view of the facts and circumstances referred to above, I am of the view that the sentence of CRL.R.P. 2683/10 :-5-: imprisonment imposed upon the revision petitioner can be modified and while granting some time to pay the compensation amount, the amount can be enhanced slightly. In the result, this Crl.R.P. is disposed of confirming the conviction of the revision petitioner under section 138 of the N.I Act as recorded by the courts below. Accordingly, the sentence of imprisonment awarded by the courts below is modified and reduced to one day simple imprisonment , i.e., till the rising of the court and the revision petitioner is further directed to pay a sum of Rs.37,500/- as compensation to the complainant under section 357(3) of Cr.P.C within two months from today and in case of any default in paying the amount within the stipulated time, he is directed to undergo simple imprisonment for a period of three months. Accordingly, the revision petitioner is directed to appear before the trial Court on 8th November, 2010 to receive the sentence and to pay the compensation amount. It is made clear that the revision petitioner is free to pay the compensation amount either directly to the complainant or by remitting the same in the trial court CRL.R.P. 2683/10 :-6-: whichever subject to the satisfaction of the learned Magistrate. 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. Coercive steps if any pending against the revision petitioner shall be deferred till 8.11.2010. This Crl.R.P. is disposed of Accordingly. V.K.MOHANAN, JUDGE vm/-