IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 14TH OCTOBER 2010 / 22ND ASWINA 1932 Crl.Rev.Pet.No. 2359 of 2010 (D) -------------------------------------- CRA.270/2008 of THE ADDL. DIST. & SESSIONS (ADHOC-II) COURT, PATHANAMTHITTA. CC.1188/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT I, THIRUVALLA .................... REVN. PETITIONER/APPELLANT/ACCUSED ------------------------------------------------------------- SAJI JACOB, S/O.JACOB, BETHEL VAYALUNKAL, NEAR S.B.HIGH SCHOOL, CHENGANASSERRY, PATHANAMTHITTA DIST. BY ADVS. SRI.THAMPAN THOMAS SRI.B.V.JOY SANKER SMT.JANCY ALEX RESPONDENT/RESPONDENT/COMPLAINANT & STATE --------------------------------------------------------------------------------- 1. P.A.KOSHY, PEDIAKKAL HOUSE, PALIYEKKARA, THIRUVALLA, PATHANAMTHITTA DISTRICT-689 101. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. BY PUBLIC PROSECUTOR, SRI.V.TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2359 of 2010 ------------------------------- Dated this the 14th day of October, 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, towards the discharge of a legally enforceable debt, the accused issued a cheque dated 2.10.2004 for a sum of Rs.2,00,000/-, 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-Thiruvalla, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments 2 Crl. R.P.No.2359 of 2010 Act and instituted C.C.No.1188/04. During the trial of the case, PW1, the complainant himself was examined from the side of the complainant and Exts.P1 to P5 were marked. No evidence either oral or documentary adduced from the side of the defence. 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.2,00,000/- to the complainant as compensation u/s.357(3) of Cr.P.C., failing which the revision petitioner was directed to undergo simple imprisonment for 3 months. 3 Crl. R.P.No.2359 of 2010 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 28.6.2010 in Crl.A.270/08, the Court of Addl. District & Sessions Judge, Fast Track Court (Ad hoc)-II, Pathanamthitta, dismissed the appeal, confirming the conviction and sentence imposed against the accused by the trial court. 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 revision petition and accordingly the conviction recorded by the courts below against the revision petitioner u/s.138 of 4 Crl. R.P.No.2359 of 2010 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 the sentence of imprisonment imposed against the revision petitioner is unreasonable and exorbitant and it require to be set aside and further 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 other facts 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 2.10.2004, that too for an amount of Rs.2,00,000/-. Thus as per the records and the findings of the 5 Crl. R.P.No.2359 of 2010 courts below, which approved by this court, a sum of Rs.2,00,000/- 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 the sentence of imprisonment ordered against the revision petitioner can be modified and reduced and 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 courts below is modified and reduced to one day simple imprisonment ie., till the rising of the court. Whereas, the compensation amount ordered by the appellate court u/s.357(3) of Cr.P.C. is enhanced to the tune of Rs.2,30,000/-, which shall be paid by the revision petitioner, within 3 months from today and in case of default in paying the compensation amount within 6 Crl. R.P.No.2359 of 2010 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 14.1.2011, to receive the modified sentence of imprisonment and to pay the compensation amount as directed by this court. 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. The execution of warrant if any, pending against the revision petitioner shall be deferred till 14.1.2011. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/