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. 2989 of 2010() ------------------------------ CRA.913/2007 of SESSIONS COURT, THRISSUR CC.967/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHAVAKKAD .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED :- ------------------------------------------------------------------ V.C.SALIM, AGED 39 YEARS, PANANGHAYIL HOUSE, RESIDING AT VATTATHUPPARAMBU, POST GURUVAYOOR & AMSOM, CHAVAKKAD TALUK, THRISSUR DISTRICT. BY ADVS. SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN RESPONDENT(S)/RESPONDENTS/COMPLAINANT :- ---------------------------------------------------------------------- 1. V.K. MOHAMMED KUNJI, S/O. KUNJI MOIDHUNNY, VALIYAKATH KURUPPATHTHAKAAYIL HOUSE, MANIKKATHPADY DESOM GURUVAYOOR AMSOM, CHAVAKKAD TALUK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR MR.V.TEK CHAND 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.2989 of 2010 --------------------------------- Dated this the 11th day of October 2010 O R D E R This revision petition is preferred by the accused in a prosecution for an offence punishable under Sec.138 of the Negotiable Instruments Act, as he is aggrieved by the conviction and sentence ordered by the courts below. 2. The case of the complainant is that the accused/revision petitioner borrowed a sum of Rs.30,000/- from the complainant and towards the discharge of the debt due to the complainant, he issued a cheque dated 19.7.2005 for a sum of Rs.90,000/-, 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 Crl.R.P.No.2989 of 2010 -: 2 :- punishable u/s.138 of the Negotiable Instruments Act. With the said allegation, the complainant approached the Judl. First Class Magistrate Court, Chavakkad, by filing a formal complaint, upon which cognizance was taken u/s.138 of the Negotiable Instruments Act and instituted C.C.No.967/2005. During the trial of the case, the complainant himself was examined as PW1 and Exts.P1 to P6 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 Crl.R.P.No.2989 of 2010 -: 3 :- imprisonment for a period of three months and to pay a compensation of Rs.90,000/- to the complainant and the default sentence is fixed as three months simple imprisonment. 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 6.7.2010 in Crl.A.No.913/2007, the Court of Sessions Judge, Thrissur allowed the appeal only in part, and while confirming the conviction, the substantial sentence is modified and reduced to imprisonment till the rising of the court. 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. The learned counsel for the revision petitioner submitted that the complainant who was examined as PW1 was not cross examined and therefore the matter may be Crl.R.P.No.2989 of 2010 -: 4 :- remitted back to the trial court for cross examining PW1. I am unable to sustain the above contention, since the trial court has observed that though PW1 was available for cross examination, he was not cross examined. It is also relevant to note that no steps were taken by the revision petitioner to recall the witnesses for the purpose of cross examination at any point of time before the disposal of the matter by the trial court. It is also relevant to note that the complainant has filed a suit against the revision petitioner and he had obtained a decree in his favour and towards the execution of the decree he had attached the property of the revision petitioner. So the liability of the revision petitioner is established and there is laches on the part of the revision petitioner in not cross examining the complainant at appropriate time and there is sheer negligence in taking any effective steps for cross examining PW1. Therefore, I am of the view that it is illegal and improper to remit the matter back to court below at this stage. Crl.R.P.No.2989 of 2010 -: 5 :- 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 it requires reconsideration and some breathing time be granted to pay the compensation amount. 7. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered positively keeping in mind that the cheque in question pertaining to the year 2005. The Apex Court in the decision 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 light of the above settled legal position and the facts referred above, I am of the view that the sentence of imprisonment ordered by the court below can be Crl.R.P.No.2989 of 2010 -: 6 :- modified 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 of the revision petitioner u/s.138 of the Negotiable Instruments Act as recorded by the courts below. Accordingly, while confirming the sentence of imprisonment as modified and fixed by the appellate court, and confirming the order to pay compensation and also the default sentence, the compensation amount is enhanced as 95,000/-, which shall be paid within three months from today. Accordingly the revision petitioner is directed to appear before the trial court on 11th January, 2011 to receive the sentence and to pay the revised compensation amount. If there is any failure on the part of the revision petitioner in 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 Crl.R.P.No.2989 of 2010 -: 7 :- petitioner and to execute the sentence. The coercive steps if any, pending against the revision petitioner shall be deferred till 11.1.2011. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, JUDGE. Jvt