IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 10TH JUNE 2010 / 20TH JYAISTHA 1932 Crl.Rev.Pet.No. 1771 of 2010() ------------------------------ CRA.38/2009 of ADDL. SESSIONS COURT (FAST TRACK-II), ALAPPUZHA CC.517/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT -I, ALAPPUZHA .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED :- ------------------------------------------------------------------- B.H.SURESH BABU, S/O.HARIDAS, AGED 49 YEARS, BABU SADANAM, WARD NO.6, MARARIKULAM NORTH, KALAVOOR, ALAPPUZHA. BY ADV. MR.MATHEW JAMES RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE :- ------------------------------------------------------------------------------------- 1. P.J.ANAZ, PARTNER, M/S.SWAPNA TRADERS, GENERAL MERCHANTS & COMMISSION AGENTS, NEAR STONE BRIDGE, ALAPPUZHA. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.M.R.VENUGOPAL THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt V.K.MOHANAN, J. ----------------------------- Crl.R.P.No.1771 of 2010 --------------------------------- Dated this the 10th day of June 2010 O R D E R Aggrieved by the conviction and sentence imposed against the revision petitioner under Sec.138 of the N.I.Act, this revision petition is preferred. 2. The case against the revision petitioner is that he had issued a cheque, in discharge of his legally enforced debt which is due to the complainant, for an amount of Rs.1,88,137/- and when the said cheque presented for encashment it was dishonoured. Though demand for payment of the cheque amount was made by sending a statutory notice, the same was declined and hence the complainant approached the court of Judicial First Class Magistrate Court-I, Alappuzha by filing a complaint alleging the offence under Sec.138 of the N.I.Act for which Crl.R.P.No.1771 of 2010 : 2 : cognizance was taken and C.C.No.517/2006 was instituted. During the course of the trial, the complainant himself was examined as PW1 and Exts.P1 to P8 were produced from the side of the complainant. No evidence was adduced from the side of the accused. Thus, on the basis of available evidence and materials, the trial court found that the accused has issued Ext.P1 cheque in discharge of a debt and he failed to make the payment in spite of the statutory notice and thus he is found guilty and thus convicted and sentenced him to undergo imprisonment till the rising of the court. It was also directed that the revision petitioner shall pay compensation of Rs.1,88,137/- to the complainant and default sentence is fixed as simple imprisonment for a period of four months. In appeal at the instance of the accused/revision petitioner by judgment dated 17.3.2010 in Crl.A.No.38/2009 of the Court of Additional Sessions Judge (Fast Track-II), Alappuzha confirmed the conviction and while maintaining the sentence of imprisonment the Crl.R.P.No.1771 of 2010 : 3 : compensation fixed by the trial court was ordered to pay as fine and thus, the revision petitioner sentenced to pay a fine of Rs.1,88,137/- and if the said amount is realized, directed to pay as compensation to the complainant under Sec.357 (1) of Cr.P.C. It is the above conviction and sentence and the judgments of the courts below challenged in this revision petition. 3. I have heard the learned counsel for the revision petitioner and also perused the judgments of the courts below. 4. The learned counsel for the revision petitioner vehemently argued against the finding of the courts below. Nothing brought to my notice to interfere with the concurrent finding of the trial court as well as the lower appellate court regarding the liability fixed. In this case no evidence is adduced by the accused and no reply was given to the lawyer notice sent by the complainant and there is no dispute regarding the execution, issuance of the cheque and Crl.R.P.No.1771 of 2010 : 4 : the transaction claimed by the complainant. Therefore, the finding of facts concurrently arrived on by the courts below are not liable to be interfered in this revision petition. Hence there is no merit in the revision petition. 5. The learned counsel for the revision petitioner submitted that some time may be granted to deposit the fine amount. I am of the view that the said submission can be considered favourably but subject to relevant materials and other circumstances involved in the case. 6. It is relevant to note that Ext.P1 cheque is dated 27.1.2006 for an amount of Rs.1,88,137/- and as per records, the said amount is belonged to the complainant which is with the revision petitioner for the last four years. It is also relevant to note that no substantial sentence of imprisonment other than sentence of imprisonment, till the rising of the court, awarded against the revision petitioner. Though the trial court directed the revision petitioner to pay the cheque amount as compensation to the complainant. Crl.R.P.No.1771 of 2010 : 5 : The lower appellate court converted the same into a fine. The Apex Court in the decision in Damodar S. Prabhu v. Sayed Babulal. H represented in J.T.2010(4) SC Page 457, held that in case of dishonour of cheque the compensation aspect of the remedy given priority over the punitive aspect. In the light of the above settled decision of law and on consideration of the other relevant facts involved in the case, I am of the view that as requested by the counsel for the revision petitioner, two months time can be granted and at the same time, the fine amount fixed by the lower court can be enhanced. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner/accused under Sec.138 of the N.I.Act as recorded by the trial court as well as the lower appellate court. The sentence of imprisonment awarded by the courts below is also confirmed. The revision petitioner is further sentenced to pay a fine of Rs.1,93,000/- and in default in paying the Crl.R.P.No.1771 of 2010 : 6 : amount, he is directed to undergo simple imprisonment for three months. If the fine amount is realized, a sum of Rs.1,92,000/- shall be paid to the complainant/respondent under Sec.357(1)(b) of Cr.P.C. Accordingly, the revision petitioner is directed to appear before the trial court on 10.8.2010 to deposit the fine amount. If there is any failure on the part of the revision petitioner in appearing before the trial court as directed in this judgment, the trial court is free to take coercive steps against the revision petitioner to execute the sentence. V.K.MOHANAN, JUDGE. Jvt