IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 23RD JUNE 2010 / 2ND ASHADHA 1932 Crl.Rev.Pet.No. 1900 of 2010() ------------------------------------- CRA.179/2008 of SESSIONS COURT, PATHANAMTHITTA ST.948/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II,PATHANAMTHITTA ................................................................................................................... REVN. PETITIONER(S): APPELLANT/ACCUSED ----------------------------------------------------------------- T.S.RAJAN, S/O.SANKARANKUTTY, KESARI BHAVAN, THOTTAMAN, RANNI TALUK, PATHANAMTHITTA DISTRICT. BY ADV. SRI.SIBY MATHEW SRI.PHILIP J.VETTICKATTU RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ----------------------------------------------------------------------------------- 1. P.SOMANATHAN, SIVA VILAS, ATHUMPUMKULAM, RANNY, PATHANAMTHITTA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.PUSHPALATHA M.K. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1900 of 2010 ------------------------------- Dated this the 23rd day of June, 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/revision petitioner, towards the discharge of a debt due to the complainant, issued a cheque dated 20.5.2006 for a sum of Rs.60,000/-, which when presented for encashment dishonoured 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 Judicial First Class Magistrate Court-II, Pathanamthitta, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act Crl. R.P.No.1900 of 2010 2 and instituted S.T.No.948/06. During the trial of the case, PW1 was examined from the side of the complainant and Exts.P1 to P6 were marked. From the side of the defence, Ext.D1 was marked and no oral 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 3 months and to pay a fine of Rs.65,000/- to PW1 as compensation u/s.357(1) of Cr.P.C. The default sentence is fixed as 1 month simple imprisonment. 3. In appeal, at the instance of the revision petitioner/ accused by judgment dated 19.3.2010 in Crl.A.179/08, the Court Crl. R.P.No.1900 of 2010 3 of Sessions Judge, Pathanamthitta, confirmed the conviction but modified the sentence passed by the trial court, against the revision petitioner u/s.138 of Negotiable Instruments Act. Accordingly, the revision petitioner is directed to undergo simple imprisonment till rising of the Court and to pay a sum of Rs.65,000/- to PW1 as compensation u/s.357(3) of Cr.P.C. and in default of payment of compensation, he is directed to undergo simple imprisonment for a further period of 3 months. 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 in 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 Crl. R.P.No.1900 of 2010 4 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. The counsel for the revision petitioner submitted that, some breathing time may be granted to deposit the compensation amount. I am of the view that the said submission can be considered favourably but subject to other relevant materials and circumstances involved in the case. 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 cheque in question is dated 20.5.2006, for an amount 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/- is in the hands of the revision petitioner for the last more than 4 years. Crl. R.P.No.1900 of 2010 5 Considering the above facts and legal position, I am of the view that, the sentence of imprisonment can be retained and the compensation amount and the default sentence can be enhanced slightly and the revision petitioner can be granted 3 months time to pay the compensation amount. 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 revision petitioner is directed to undergo simple imprisonment till the rising of the court and he is directed to pay a sum of Rs.67,500/- to the complainant as compensation u/s.357(3) of Cr.P.C. and in case of default in paying the compensation, the revision petitioner is directed to undergo simple imprisonment for 6 months. Accordingly, the revision petitioner is directed to appear before the trial court on 23.9.2010 to pay the compensation amount as directed by this court. The revision petitioner is free to make the payment directly to the complainant or remit the amount in the court Crl. R.P.No.1900 of 2010 6 below but subject to the satisfaction of the trial court. In case any failure on the part of the revision petitioner in appearing before the court below as directed above and in depositing 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. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/