IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 15TH SEPTEMBER 2010 / 24TH BHADRA 1932 Crl.Rev.Pet.No. 2713 of 2010() ---------------------------- CRA.654/2008 OF ADDL.DISTRICT & SESSIONS COURT (ADHOC-II), KOTTAYAM ST.756/2008 OF JUDL. FIRST CLASS MAGISTRATE COURT- II (MOBILE), KOTTAYAM ................ REVISION PETITIONER / APPELLANT / ACCUSED : --------------------------------------------------------------------- P.M.HASSANKUTTY, PARAPPALLIL HOUSE, KUMMANAM P.O., KOTTAYAM (BISMILLA WASTE PAPER STORES, KOTTAYAM-1). BY ADV. SMT. RUBY K.JOSE RESPONDENTS / RESPONDENTS / STATE & COMPLAINANT : ------------------------------------------------------------------------------------ 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. USHA PRASAD, MANAGER, SBT, CMS COLLEGE BRANCH, KOTTAYAM-686 001. R1 BY PUBLIC PROSECUTOR SRI. V. TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2713 of 2010 ------------------------------- Dated this the 15th 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, the accused/ revision petitioner borrowed a sum of Rs.1,00,000/- from the complainant and towards the discharge of the debt due to the complainant, he issued a cheque dated 6.10.2003 for a sum of Rs.1,00,000/-, 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-II (Mobile), Kottayam, by filing a formal complaint, upon which cognizance was taken u/s.138 of 2 Crl. R.P.No.2713 of 2010 Negotiable Instruments Act and instituted S.T.No.756/08. During the trial of the case, the complainant herself was mounted to the box and gave evidence as PW1 and Exts.P1 to P5(a) were marked, from the side of the complainant. From the side of the defence Dws.1 and 2 were 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 a period of 3 months and also directed to pay a sum of Rs.1,00,000/- as compensation to the complainant u/s.357(3) of Cr.P.C. and no default sentence was fixed. 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 30.4.2004 in 3 Crl. R.P.No.2713 of 2010 Crl.A.654/08, the Court of Addl. District & Sessions Judge (Ad hoc)-II, Kottayam, disposed of the appeal upholding the conviction of the revision petitioner but the substantive term of imprisonment ordered by the court below is reduced and the direction to pay the compensation amount are set aside and the revision petitioner is sentenced to undergo simple imprisonment till the rising of the court and also sentenced to pay a fine of Rs.1,00,000/- and default sentence is fixed as 75 days simple imprisonment. It is also ordered that on realisation of the fine amount, the same shall be given to the complainant as compensation u/s.357(1)(b) of Cr.P.C. 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 4 Crl. R.P.No.2713 of 2010 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, some breathing time may be granted to pay the amount and it is also submitted that, the appellate court order may be set aside, by permitting the revision petitioner to pay the amount in terms of compensation, directly to the complainant u/s.357(3) of Cr.P.C., instead of fine. 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 other relevant inputs 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 5 Crl. R.P.No.2713 of 2010 aspects. In the present case, the cheque in question is dated 6.10.2003, for an amount of Rs.1,00,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.1,00,000/-, which belonged to the complainant is with the revision petitioner for the last 7 years. So, while granting some time 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, while confirming the sentence of imprisonment as modified and fixed by the appellate court, setting aside the direction to pay the fine, the revision petitioner is directed to pay a sum of Rs.1,00,000/- as compensation to the complainant u/s.357(3) of Cr.P.C., within 45 days from today. In case if any failure in paying the compensation amount, within the stipulated period, the revision petitioner is directed to undergo simple imprisonment for a period of 3 months. Accordingly, the revision petitioner is directed to appear before the trial court on 6 Crl. R.P.No.2713 of 2010 30.10.2010 to receive the sentence and to pay the compensation amount. 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 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 30.10.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/