IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 9TH SEPTEMBER 2010 / 18TH BHADRA 1932 Crl.Rev.Pet.No. 2536 of 2010() --------------------------- CRA.115/2008 OF SESSIONS COURT, PATHANAMTHITTA CC.43/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -II, RANNY .............................................. PEITIONER / APPELLANT / ACCUSED : ---------------------------------------------------- RAVINDRANATH, EDATHIL HOUSE, KOTTAMONPARA, SEETHATHODU, PATHANAMTHITTA. BY ADV. SRI.C.A.RAJEEV RESPONDENTS / RESPONDENTS / COMPLAINANT & STATE : ------------------------------------------------------------------------------------- 1. PURUSHOTHAMAN K.K., KOMPANOLIL HOUSE, KOTTAMONPARA, SEETHATHODU, PATHANAMTHITTA. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.V.SETHUNATH R2 BY PUBLIC PROSECUTOR SMT. SUMANGALA P.N. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2536 of 2010 ------------------------------- Dated this the 9th 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, a sum of Rs.60,000/- was due to the complainant from the accused/revision petitioner and towards the discharge of the said liability, the accused issued a cheque dated 29.9.2004 for a sum of Rs.25,000/- and another cheque dated 1.10.2004 for an amount of Rs.35,000/-, which were when presented for encashment dishonoured, as there was no sufficient fund in the account maintained by the accused and the cheque amounts were 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 2 Crl. R.P.No.2536 of 2010 approached the Judl. First Class Magistrate Court-II, Ranny, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.43/08. During the trial of the case, PW1, the complainant himself was examined from the side of the complainant and Exts.P1 to P8 were marked. From the side of the defence, DW1 was examined and no documentary evidence adduced. 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 6 months and also ordered the revision petitioner to pay a sum of Rs.60,000/- to the complainant as compensation u/s.357(3) of Cr.P.C. and no default sentence is fixed. 3 Crl. R.P.No.2536 of 2010 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 18.1.2010 in Crl.A.115/08, the Court of Sessions Judge, Pathanamthitta, allowed the appeal only in part, confirming the conviction imposed against the accused by the trial court and the sentence of imprisonment is reduced to one day simple imprisonment ie., till the rising of the court and while retaining the direction to pay compensation of Rs.60,000/-, the default sentence is fixed as 3 months simple imprisonment. 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 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 4 Crl. R.P.No.2536 of 2010 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 slight enhancement in the compensation amount. 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 cheques in question were dated 29.9.2004 and 1.10.2004, that too for a total sum of Rs.60,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.60,000/- 5 Crl. R.P.No.2536 of 2010 which belonged to the complainant is with the revision petitioner for the last 6 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 compensation amount, the same 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 awarded by the appellate court is maintained. Whereas, the compensation amount ordered by the appellate court u/s.357(3) of Cr.P.C. is enhanced to the tune of Rs.75,000/-, which shall be paid by the revision petitioner, within 3 months from today and in case of default in paying the compensation 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 9.12.2010, to receive the sentence of imprisonment and to pay the 6 Crl. R.P.No.2536 of 2010 compensation amount as directed by this court. It is made clear that the revision petitioner is free to pay the compensation amount either directly to the complainant or by remitting the same in the trial court which ever is subject to the satisfaction of the learned Magistrate. In case, any failure on the part of the revision petitioner in appearing before the court below as directed above and in making the payment of 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 9.12.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/