IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 19TH OCTOBER 2010 / 27TH ASWINA 1932 Crl.Rev.Pet.No. 2799 of 2010 () ------------------------------ REVN. PETITIONERS/APPELLANTS/ACCUSED 1 AND 2 ----------------------------------------------------------------------------- 1. SUNAGOG KURIES AND HIRE PURCHASE (P) LTD., REG.OFFICE, PUNNAMPARAMBU, THRISSUR DISTRICT, REP. BY ITS MANAGING DIRECTOR VAREED. 2. VAREED, S/O. RAPPAI, CHAIRMAN AND MANAGING DIRECTOR, SUNAGOG KURIES AND HIRE PURCHASE (P) LTD., CHITTILAPPILLY HOUSE, PUNNAMPARAMBU, THEKKUMKARA, THRISSUR DISTRICT. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENTS/ RESPONDENTS/STATE OF KERALA AND COMPLAINANT --------------------------------------------------------------------------------------------------------- 1. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 31. 2. SAJU JOHN, S/O. JOHN, KUNDUKULAM, C/O. SEA LAND MOTORS, PARUTHIPRA, WADAKKANCHERY, TALAPPILLY TALUK 690502. BY PUBLIC PROSECUTOR, SRI.V. TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2799 of 2010 ------------------------------- Dated this the 19th day of October, 2010. O R D E R The accused in a prosecution for an offence u/s.138 of Negotiable Instruments Act is the revision petitioner, as he is aggrieved by the order of conviction and sentence imposed by the courts below. 2. The case of the complainant is that, he was a subscriber in a chitty No.Sx VIII-3, run by the accused/company and a sum of Rs.67,178/- was due from the accused to the complainant and towards the discharge of the said liability, the 2nd accused issued a cheque dated 14.8.2006 for a sum of Rs.67,178/-, which when presented for encashment dishonoured due to insufficiency of funds 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 Negotiable Instruments Act. With the said allegation, the complainant approached the Judl. First Class Magistrate Court-Wadakkanchery, by filing a formal complaint, upon which 2 Crl. R.P.No.2799 of 2010 cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.1246/07. During the trial of the case, PW1, the complainant himself was examined from the side of the complainant and Exts.P1 to P7 were marked. From the side of the defence, DW1 the accused himself was examined and Exts.D1 and D2 were marked and witness exhibits were marked as X1 and X2. 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 liability 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 1st accused/company to pay a fine of Rs.10,000/- u/s.138 of NI Act and the 2nd accused is sentenced to undergo simple imprisonment for 3 months and also sentenced to pay a fine of Rs.67,178/- u/s.138 of NI Act, 3 Crl. R.P.No.2799 of 2010 failing which the revision petitioner was directed to undergo simple imprisonment for 1 month. It is also ordered that on realisation of the fine amount, the same shall be paid to the complainant as compensation u/s.357(1)(b) of Cr.P.C. 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 17.8.2010 in Crl.A.73/09, the Court of Addl.Sessions Judge (Fast Track)-II (Ad hoc)-Thrissur, allowed the appeal only in part. Accordingly, while confirming the conviction of the accused, the sentence of imprisonment imposed against the 2nd revision petitioner to undergo simple imprisonment for 3 months is modified and reduced into imprisonment till the rising of the court. The sentence to pay fine imposed against A1 and order of compensation awarded by the appellate court u/s.357(1)(b) of Cr.P.C. are confirmed. 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 4 Crl. R.P.No.2799 of 2010 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 Instruments Act, is approved. 6. As this court is not inclined to interfere with the conviction recorded by the courts below, the learned counsel for the revision petitioner submitted that, some breathing time may be granted to pay the fine amount. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered positively but subject to other facts and circumstances involved in the case. 7. The apex court in a recent decision reported in 5 Crl. R.P.No.2799 of 2010 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 dated 14.8.2006, that too for an amount of Rs.67,178/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.67,178/- which belonged to the complainant is with the revision petitioner for the last 4 years. Considering the above facts and settled legal position, I am of the view that, while granting some time to the revision petitioner to pay the fine, the amount can be enhanced slightly. 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 courts below. Accordingly, while confirming the sentence of imprisonment imposed against the 2nd revision petitioner by the appellate court, the sentence to pay fine imposed against the 1st 6 Crl. R.P.No.2799 of 2010 accused/1st revision petitioner is also confirmed. While confirming the sentence of fine, the fine amount is enhanced to the tune of Rs.94,612/- and the revision petitioner is granted 3 months time from today to deposit the fine amount and in case of default in paying the fine amount within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for 3 months. Accordingly, the revision petitioner is directed to appear before the trial court on 19.1.2011, to receive the sentence of imprisonment and to pay the fine 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 paying the 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. On realisation of the fine amount, a sum of Rs.90,000/- shall be paid to the complainant as compensation u/s.357(1)(b) of Cr.P.C. and the remaining amount shall be paid to the State Exchequer. The execution of warrant if any, pending 7 Crl. R.P.No.2799 of 2010 against the revision petitioner shall be deferred till 19.1.2011. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/