IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 24TH OCTOBER 2011 / 2ND KARTHIKA 1933 Crl.Rev.Pet.No. 2286 of 2011() ------------------------------ CRA.450/2007 of ADDL.SESSIONS JUDGE (ADHOC)-II, KASARAGOD STC.392/2007 of JUDL. MAGISTRATE OF FIRST CLASS-II, HOSDRUG .................... REVN. PETITIONER: APPELLANT/ACCUSED -------------------------------------- P.RAMESHAN MASTER, AGED 40 YEARS, S/O.LATE KUNHIRAMAN P., PUTHIYADAVAN HOUSE, RESIDING AT THIMIRI, THIMIRI VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADV. SMT.P.K.PRIYA SRI.K.V.SREE VINAYAKAN SRI.K.M.HASHIR SRI.K.M.MUHAMMED HUSSAIN RESPONDENT/ RESPONDENT:STATE ------------------------- 1. K.BALAKRISHNAN, AGED 41 YEARS, S/O.MALINKAN NAIR, RESIDING AT KANATHIL HOUSE, PUTHUKAI P.O., VIA NILESHWAR, HOSDURG TALUK, KASARAGOD DISTRICT-671314. 2. THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.-PIN:682031 PUBLIC PROSECUTOR SRI.T.R.RAJESH THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. --------------------------------------------- Crl.R.P.No. 2286 of 2011 --------------------------------------------- Dated this the 24th day of October, 2011 ORDER Revision is by the accused, who has been found guilty of the offence under Section 138 of the Negotiable Instruments Act, (for short the N.I.Act), concurrently by the two Courts below. Sentence imposed against the accused as confirmed by the Sessions Judge in appeal is simple imprisonment for a period of six months with direction to pay compensation of Rs.1,00,000/- with default term of simple imprisonment for three months more. Feeling aggrieved, the accused has preferred this revision. 2. Learned counsel for the revision petitioner/accused assailed the conviction concurrently rendered by the two courts below, contending that the defence canvassed by the accused impeaching the execution of the instrument and denying of having any transaction with the complainant was not properly and correctly appreciated by the courts below and that has resulted in forming wrong conclusion leading to miscarriage of justice. When execution of the cheque was denied, positive evidence from the complainant establishing that it has been duly Crl.R.P.No. 2286 of 2011 2 executed by the accused/drawer and also handing over of the instrument in discharge of a legally enforcible debt or liability was essential, submits the counsel. None on the above aspects has been proved in the case by the complainant and as such the conviction imposed against the accused is unsustainable, according to the counsel. 3. Going through the judgments rendered by the learned magistrate and learned sessions judge, I find no merit in the challenges raised to assail the conviction of the accused. In defence of the prosecution launched for the offfence under Section 138 of the N.I. Act the accused contended that the cheque involved was handed over by him as security to another for a loan availed from such person and he had no transaction whatsoever with the complainant. There was no challenge as regards the signature subscribed in the cheque and also the entries filled up in the cheque. The materials tendered in the case would also disclose that on presentation of the cheque and its dishonour a statutory notice was issued to the accused. But after acknowledgment it was not responded with any reply. The belated defence canvassed at the stage of trial disputing the transaction with the complainant contending that the instrument Crl.R.P.No. 2286 of 2011 3 was handed over to another but not to the complainant was nothing but a frivolous attempt to wriggle out of the penal consequences arising from the dishonour of the instrument which, admittedly, arose from the account maintained by the accused in a bank. The evidence of the complainant examined as PW 1 was found reliable, convincing and trustworthy to the magistrate who recorded his testimony. The materials tendered by him and exhibited in evidence from Exts.P1 to P6, it was found, corroborated his assertion that the cheque had been issued by the accused in discharge of a legally enforcible debt or liability to him. 4. The learned sessions judge after re-appreciating the evidence has concurred with the conclusion so formed by the magistrate. Within the narrow compass covered by the revisional jurisdiction that finding on facts concurrently entered by the inferior courts is not liable to be interfered with unless it is shown to be perverse. No circumstance was brought to my notice even to draw an inference that the finding of fact entered as above by the courts below suffers form any infirmity. On the contrary, after going through the judgments rendered by the courts below, I am satisfied that the conviction founded against Crl.R.P.No. 2286 of 2011 4 the accused is based on unimpeachable legal evidence. 5. At this stage, learned counsel for the petitioner requested for modification of the substantive term of imprisonment imposed against the accused and also for grant of three months time to pay the compensation awarded. Sentence imposed against the accused is simple imprisonment for a period of six months apart from the direction issued to pay the compensation with the default term. The drawer of the cheque after its dishonour on presentation, when prosecuted for the offence under section 138 of the N.I.Act, no doubt, is not entitled to contend or take a defence that the dishounour of cheque arose for reasons never contemplated by him as and when it was drawn and handed over. However, a court awarding the sentence against such offender cannot be oblivious of the fact that very often the dishonour of a cheque may arise for reasons beyond the control of the maker and, perhaps, never in his contemplation when such instrument was issued. That being so, awarding of sentence against an offender for the offence under Section 138 of N.I.Act has to be imposed taking note that the liability arising on dishonour of a cheque, primarily, is of civil nature, and so much so the outlook of the court should be Crl.R.P.No. 2286 of 2011 5 more to award compensation to the complainant, the payee, and not to be punitive. Of course where any exceptional circumstances is made out in the case justifying the incarceration of the offender of a term in prison, such sentence has to be imposed. 6. No such exceptional circumstance has been made out in the present case as against the offender, the accused. Substantive term of imprisonment imposed against the accused requires to be modified to imprisonment till the rising of the court retaining the compensation fixed with the default term. 7. So far as the request made by the counsel for a period of three months time to pay the compensation it is seen the cheque involved in the case, the dishonour of which gave rise to prosecution and ultimately the conviction of the accused, is dated 3.2.2007. Sum covered by that instrument is Rs.1,00,000/-. When that be so prima facie there is no merit in the request made for extension of time. However, taking note of the submissions made by the counsel pointing out the extenuating circumstances available in favour of the accused, to seek for such extension of time, I find, a short period as indicated thereunder can be granted . Crl.R.P.No. 2286 of 2011 6 8. Affirming the conviction, the substantive term of imprisonment imposed against the petitioner/accused is reduced and modified as imprisonment till the rising of the court retaining the compensation fixed with the default term of simple imprisonment for three months. The petitioner shall appear before the magistrate on 4.1.2012 to serve out the imprisonment till the rising of the court and to report the payment of compensation. The magistrate is directed to keep in abeyance the execution of the sentence till the date fixed as above for his appearance. In default of his appearance and non-payment of the compensation the magistrate shall execute the sentence taking appropriate steps in accordance with law. Revision disposed. Sd/- S.S.SATHEESACHANDRAN, JUDGE. Rkc //True Copy// PA to Judge