IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 31ST AUGUST 2010 / 9TH BHADRA 1932 Crl.Rev.Pet.No. 2512 of 2010() ------------------------------ CRA.18/2007 of ADDL. DISTRICT & SESSIONS COURT (FAST TRACK COURT I), THIRUVANANTHAPURAM. ST.275/2006 of JUDICIAL FIRST CLASS MAGISTRATE COURT VI, THIRUVANANTHAPURAM. .................... REVISION PETITIONER(S): APPELLANT/ACCUSED: ---------------------------------------------------------------------------- L.VINOD, S/O.LAKSHMAN, BALACHANDRA BHAVANAM, KALLUVILA VEEDU, MULLUCODE, CHATHANCODE P.O., KALIYIKKAVILA, K.K.DISTRICT. BY ADV. SRI.N.MANU THAMPI RESPONDENT(S): COMPLAINANT/STATE: -------------------------------------------------------------- 1. C.S.VIJAYAKUMARI, W/O.E.S.SATHYADAS, 17. PRAJA, SATHYA BHAVAN, POTHUJANAM ROAD, KUMARAPURAM, THIRUVANANTHAPURAM - 690 548. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT. SUMANGALA P.N. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 31/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ---------------------------------------- Crl.R.P. No. 2512 of 2010 ---------------------------------------- Dated the 31st August, 2010 ORDER The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the revision petitioner as he is aggrieved by the conviction and sentence imposed against him as per the impugned judgment. 2. The case of the complainant is that the accused borrowed an amount of Rs.25,000/- from the complainant and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 5.10.2004 for Rs.25,000/- which when presented for encashment, dishonoured as there was no sufficient fund in the account maintained by the accused and the revision petitioner/accused miserably failed to repay the cheque amount in spite of a formal notice caused to issue by him. With the said allegation, the complainant approached the court of Addl. Chief Judicial Magistrate, Thiruvananthapuram, by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted S.T.NO.460/2004 and subsequently the case was made over to the Judicial First Class Magistrate-VI, Thiruvananthapuram, wherein the case is Crl.R.P. No.2512/10 :-2-: renumbered as STC No.275/2006. PW1 was examined from the side of the complainant and produced Exts.P1 to P6. Though there was no witness from the side of the defence, Ext.D1 document was marked from the side of the defence. After evaluation of the evidence and the materials on record, the trial court has found that Ext.P1 cheque was issued towards the discharge of a legally enforceable debt that due to the complainant and accordingly, the trial court held that the complainant has succeeded in establishing the allegation against the revision petitioner-accused and found that the revision petitioner-accused is guilty. Consequently, the accused is convicted under section 138 of the N.I.Act. On such conviction, the trial court sentenced the revision petitioner-accused to undergo simple imprisonment for 3 months and to pay a sum of Rs.25,000/- to the complainant as compensation under section 357(3) Cr.P.C., in default, he is directed to undergo simple imprisonment for a further period of one month. Aggrieved by the above order of conviction and sentence, though the revision petitioner- accused preferred an appeal, by judgment dated 9.7.2010 in Crl.R.P. No.2512/10 :-3-: Crl.A.No.18/2007, the court of Addl. Sessions Judge, Fast Track- I, Thiruvananthapuram, dismissed the appeal confirming the conviction and sentence. It is the above judgments of the trial court as well as the lower appellate court challenged in this Crl.R.P. 3. Reiterating the contention taken by the defence during the trial and appellate stages, the learned counsel submitted that the complainant has not established the transaction, execution and issuance of the cheque and therefore, the courts below are absolutely wrong in convicting the revision petitioner-accused imposing sentence against him. The trial court as well as the lower appellate court has concurrently found in favour of the complainant and against the revision petitioner-accused. Though the revision petitioner is heard elaborately, nothing is brought out to take a different view by interfering with the concurrent findings of the courts below. All the contentions are based upon the facts and evidence on record which were elaborately considered by the courts below. Therefore, I find no reason to interfere with such concurrent finding of the courts below and accordingly, Crl.R.P. No.2512/10 :-4-: the conviction recorded by the courts below is confirmed. 4. As this court is not inclined to interfere with the order of conviction, the learned counsel for the revision petitioner submitted that the sentence of imprisonment ordered by the courts below is unreasonable and exorbitant and also submitted that a breathing time may be granted to the revision petitioner to pay the compensation amount. 5. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered favourably but subject to other relevant inputs of this case. It is to be noted that as per the findings of the courts below which approved by this court, a sum of Rs.25,000/- is due to the complainant, at least, from the date of the cheque, i.e., 5.10.2004. Thus, it can be seen that the said amount is with the revision petitioner for the last six years. The Apex Court, in its recent decision in Damodar S.Prabhu v. Sayed Babalal H (J.T.2010 (4) SC 457), has held that in a case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. Considering the above legal position and the facts Crl.R.P. No.2512/10 :-5-: and circumstances mentioned above, I am of the view that the sentence of imprisonment ordered by the courts below can be modified and while granting some time to pay the compensation amount, the amount can be enhanced slightly considering the fact that the cheque amount is with the revision petitioner for the last six years. In the result, this Crl.R.P is disposed of confirming the conviction of the revision petitioner under Section 138 of the N.I.Act as recorded by the courts below. Accordingly, the sentence of imprisonment ordered by the courts below is modified and reduced to one day simple imprisonment, i.e., till the rising of the court and accordingly, the revision petitioner is further directed to pay a sum of Rs.28,000/- as compensation to the complainant under section 357(3) Cr.P.C within three months from today and in case of any default in paying the amount within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for a period one month. Accordingly, the revision petitioner is directed to appear before the trial court on 30.11.2010 to receive the sentence and to pay the compensation amount as Crl.R.P. No.2512/10 :-6-: revised and refixed by this Court. If there is any default on the part of the revision petitioner in appearing before the trial court as directed above, the trial court is free to take coercive steps against the revision petitioner to secure his presence and to execute the sentence. Warrant if any pending against the revision petitioner shall be kept in abeyance till 30-11- 2010. This Crl.R.P is disposed of as above. V.K.MOHANAN JUDGE kvm/-