IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 22ND SEPTEMBER 2010 / 31ST BHADRA 1932 Crl.Rev.Pet.No. 2715 of 2010(D) -------------------------------------------- [CRL.A.NO.178/2007 OF THE ADDL. SESSIONS COURT (ADHOC)-I, MANJERI, CC.NO.310/2005 OF JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PERINTHALMANNA] .................... REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------------- K.HASSAN, S/O. MAMMED, KOTTANGODAN HOUSE, EDAYATTOOR P.O., MELATTUR VIA, MALAPPURAM DISTRICT. BY ADV. SRI.P.VENUGOPAL. RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: ------------------------------------------------------------------------------------ 1. KAPPIL ABOOBACKER, S/O. MOUDUTTY, KAPPIL HOUSE, P.O.PATHIRIKOTTA, VIA; MELATTUR, MALAPPURAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY 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 22/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2715 of 2010 ------------------------------- Dated this the 22nd day of September, 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 the accused/revision petitioner borrowed a sum of Rs.75,000/- and towards the discharge of the said liability, the accused issued a cheque dated 13.6.2005 for a sum of Rs.75,000/-, 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 Negotiable Instruments Act. With the said allegation, the complainant approached the Judl. First Class Magistrate Court-II, Perintalmanna, by filing a formal complaint, upon which 2 Crl. R.P.No.2715 of 2010 cognizance was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.310/05. During the trial of the case, PW1, the complainant himself was examined from the side of the complainant and Exts.P1 to P4 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 1 month and also ordered the revision petitioner to pay a sum of Rs.75,000/- to the complainant as compensation u/s.357(3) of Cr.P.C., failing which the revision petitioner was directed to undergo simple imprisonment for 3 months. 3 Crl. R.P.No.2715 of 2010 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 15.11.2008 in Crl.A.178/07, the Court of Addl. Sessions Judge (Ad hoc)-1, Manjeri, dismissed the appeal, confirming the conviction but subject to certain modification with respect to the sentence. Accordingly, the sentence of imprisonment ordered by the trial court is modified and reduced to till the rising of the court and also directed to pay compensation of Rs.75,000/- to the complainant, within a period of 2 months and in failure to pay the amount within the time limit fixed, directed him to undergo simple imprisonment for 1 month. 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 4 Crl. R.P.No.2715 of 2010 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 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 but subject to other facts and circumstances involved in the case. 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 dated 5 Crl. R.P.No.2715 of 2010 13.6.2005, that too for an amount of Rs.75,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.75,000/- which belonged to the complainant is in the hands of the revision petitioner for the last 5 years. Considering the above facts and settled legal position, I am of the view that the sentence of imprisonment ordered against the revision petitioner can be maintained and while granting some time to the revision petitioner to pay the compensation amount, 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, the sentence of imprisonment as modified and reduced by the appellate court and the direction to pay the compensation of Rs.75,000/- to the complainant u/s.357(3) of Cr.P.C. are confirmed and the revision petitioner is granted 1 month time to pay the compensation amount. The default sentence fixed by the appellate court will be attracted, only in 6 Crl. R.P.No.2715 of 2010 case of any default in paying the compensation amount within one month time from today. Accordingly, the revision petitioner is directed to appear before the trial court on 22.10.2010, to receive the sentence of imprisonment and 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 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 awarded against the revision petitioner. The execution of warrant if any, pending against the revision petitioner shall be deferred till 22.10.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/