IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 24TH JUNE 2010 / 3RD ASHADHA 1932 Crl.Rev.Pet.No. 1888 of 2010() ------------------------------------ CRA.126/2009 of SPL. COURT (NDPS ACT CASES), THODUPUZHA ST.4/2008 of JUDL.MAGISTRATE OF FIRST CLASS - II, IDUKKI .............................................................................. REVN. PETITIONER(S): REVISION PETITIONER/APPELLANT/ACCUSED --------------------------------------------------------------------------------------------------- CHANDRASEKHARAN NAIR,VETTICKAL HOUSE, NOW RESIDING AT VADAKKUMMURY HOUSE,UPPUTHODU.PO, UPPUTHODU VILLAGE,IDUKKI DISTRICT. BY ADV. SRI.JOHNSON P.JOHN SRI.RAJU VADAKKEKARA RESPONDENT(S): RESPONDENT/COMPLAINANT -------------------------------------------------------------------- 1. M.M.MATHEW, MALAKUZHIYIL HOUSE, THOPPRAMKUDY KARA,VATHIKUDY VILLAGE, IDUKKI DISTRICT. 2. STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR MR. B. JAYASURYA – R2. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1888 of 2010 ------------------------------- Dated this the 24th 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 20.11.2006 for a sum of Rs.20,000/-, which when presented for encashment dishonoured, due to the reason that fund insufficient in the account of 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 same allegation, the complainant approached the Judicial First Class Magistrate Court-II, Idukki, by filing a formal complaint, upon which cognizance was taken Crl. R.P.No.1888 of 2010 2 u/s.138 of Negotiable Instruments Act and instituted S.T.No.4/08. 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, Dws.1 to 3 were examined and Ext.D1 was marked and produced. 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 held 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 1 year and to pay a sum of Rs.20,000/- to PW1 as compensation u/s.357(3) of Cr.P.C. The default sentence is fixed as 3 months imprisonment. 3. In appeal, at the instance of the revision petitioner/ Crl. R.P.No.1888 of 2010 3 accused, by judgment dated 29.12.2009 in Crl.A.126/09, the appeal is allowed only in part, by the Court of Addl. Sessions Judge/ Special Judge for NDPS Act cases, Thodupuzha, and while confirming the conviction, the sentence was modified. Accordingly, the sentence of imprisonment has been reduced and the revision petitioner is directed to undergo simple imprisonment for 6 months and also directed to pay a sum of Rs.20,000/- 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 appeal, submitted that the complainant has not established the transaction and also the Crl. R.P.No.1888 of 2010 4 execution and issuance of the cheque. The counsel for the revision petitioner further submitted that the courts below has committed wrong in convicting the revision petitioner. 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 Negotiable Instruments Act, is approved. 6. The counsel for the revision petitioner submitted that, a lenient view may be taken in the matter of sentence and 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 Crl. R.P.No.1888 of 2010 5 over the punitive aspects. In the present case, the cheque in question is dated 20.11.2006, for an amount of Rs.20,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.20,000/- is in the hands of the revision petitioner for the last 3 ½ years. Considering the above facts and legal position, I am of the view that, the sentence of imprisonment can be reduced but the compensation amount 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 rising of the court and he is also directed to pay a sum of Rs.25,000/- 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 Crl. R.P.No.1888 of 2010 6 simple imprisonment for 6 months. Accordingly, the revision petitioner is directed to appear before the trial court on 24.9.2010 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 making the deposit of 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 petitions are disposed of accordingly. V.K.MOHANAN, Judge. ami/