IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 6TH OCTOBER 2010 / 14TH ASWINA 1932 Crl.Rev.Pet.No. 2858 of 2010 (B) ------------------------------ ( CRA.382/2009 of SESSIONS COURT, KOTTAYAM ST.2899/2006 of JUDL. MAGISTRATE OF FIRST CLASS, KOTTAYAM) .................... REVN. PETITIONER/APPELLANT/ACCUSED -------------------------------------------------------------- ABDUL RASHEED,KONDATTUPARAMBIL HOUSE, FRUITS MERCHANT, T.B.ROAD, KOTTAYAM. BY ADV. SRI.R.AZAD BABU RESPONDENTS/COMPLAINANT/STATE -------------------------------------------------------- 1. STATE REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. KOTTAYAM URBAN WELFARE CO-OPERATIVE SOCIETY NO.1021, KOTTAYAM REPRESENTED BY SECRETARY, SINI MATHEW, PIN – 678 001. BY PUBLIC PROSECUTOR, SMT.P.N.SUMANGALA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2858 of 2010 ------------------------------- Dated this the 6th 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, the accused availed a daily collection loan from the complainant bank but there was default in paying the loan amount and finally the accused issued a cheque dated 24.7.2006 for an amount of Rs.21,841/-, which 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-Kottayam, by filing a formal 2 Crl. R.P.No.2858 of 2010 complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.2899/06. During the trial of the case, the complainant himself was mounted to the box and gave evidence as PW1 and Exts.P1 to P9 were marked, from the side of the complainant. From the side of the defence, Ext.D1 was produced and marked, though no oral evidence was examined. 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 to pay a fine of Rs.21,841/- and it is also ordered that if the said amount is realised, the entire amount shall be given to the complainant as compensation u/s.357(1)(b) of Cr.P.C. and the 3 Crl. R.P.No.2858 of 2010 default sentence is fixed as 1 month simple imprisonment. 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 26.7.2010 in Crl.A.382/09, the Court of Sessions Judge-Kottayam Division, allowed the appeal only in part, confirming the conviction imposed against the revision petitioner by the trial court. Accordingly, the sentence of imprisonment ordered by the trial court is also confirmed but the direction to pay fine is set asided and the revision petitioner is directed to pay compensation of Rs.21,841/- to the complainant u/s.357(3) of Cr.P.C. and in default to undergo simple imprisonment for 1 month. Accordingly, the revision petitioner was directed to appear before the trial court on 27.9.2010 to receive the sentence and to pay compensation amount. 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 4 Crl. R.P.No.2858 of 2010 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 order of conviction recorded by the courts below, the counsel for the revision petitioner submitted that, the sentence of imprisonment ordered by the courts below is unreasonable and exorbitant and the same may be set aside and also submitted that, some breathing time may be granted to pay the compensation amount. 7. In the present case the complainant is a co-operative institution and the loan availed by the accused is for an amount of Rs.15,000/-. 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 5 Crl. R.P.No.2858 of 2010 compensatory aspect of the remedy should be given priority over the punitive aspects. Therefore, considering the above settled legal position and the facts referred above, I am of the view that the sentence of imprisonment ordered by the trial court and confirmed by the appellate court can be modified and the revision petitioner can be granted one month time to pay compensation. 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, in modification of the sentence of imprisonment ordered by the trial court, which confirmed by the appellate court, is reduced and the revision petitioner is directed to undergo simple imprisonment for one day ie., till the rising of the court and the revision petitioner is granted one month time to pay the compensation as ordered by the appellate court and it is made clear that the default sentence fixed by the appellate court will attract only in case of any default in paying the compensation amount within the stipulated period fixed by this 6 Crl. R.P.No.2858 of 2010 court. Accordingly, the revision petitioner is directed to appear before the trial court on 6.11.2010, to receive the sentence of imprisonment and to pay the compensation amount, as fixed by this court. If the compensation amount is realised, the same shall be given to the complainant u/s.357(3) of Cr.P.C. 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. Coercive steps if any, pending against the revision petitioner shall be deferred till 6.11.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/