IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 24TH JANUARY 2011 / 4TH MAGHA 1932 Crl.Rev.Pet.No. 218 of 2011() ---------------------------------- CRA.129/2010 of III ADDL.SESSIONS COURT, KOLLAM CC.963/2007 of JUDL.MAGISTRATE OF FIRST CLASS-III, PUNALUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------ ACHANKUNU, S/O. PAPPY, KARIKKATHIL VEEDU, MUTHALATHU, YEROOR.P.O., YEROOR, KOLLAM DISTRICT. BY ADV. DR.PAULY MATHEW MURICKEN RESPONDENT(S): COMPLAINANT AND STATE ---------------------------------------------------- 1. JACOB K.THOMAS, S/O.K.P.THOMAS, KOIPPURATHU VEEDU, KARAVALUR.P.O., KARAVALUR VILLAGE, KOLLAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM R2 BY PUBLIC PROSECUTOR SRI THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs V.K.MOHANAN, J. - - - - - - - - - - - - - - - - - - - Crl. R.P. No.218 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24 th day of January, 2011. O R D E R The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act,1881 (for short ‘the N.I Act’) approached this Court by preferring the above revision petition challenging his conviction and sentence, imposed as per judgments of the trial court as well as the lower appellate court. 2. I have heard learned counsel for the revision petitioner as well as counsel for the respondents. 3. Learned counsel for the revision petitioner vehemently submitted that there are several contradictions regarding the actual date of borrowal claimed by the complainant and absolutely no averments are taken in the complaint itself. It is also the submission of the learned counsel that the plea of the complainant that, he raised the amount by Crl. R.P. No.218/2011 2 withdrawing money from his account is proved false by the documents produced by the complainant himself. Thus according to, the learned counsel for complainant has miserably failed to establish the transaction claimed by him. 4. I am unable to sustain the above contention. First of all, it is relevant to note that, though a legal demand notice was received by the accused/revision petitioner, no timely reply was given to the above notice and there is no convincing and satisfactory explanation as to how the cheque in question, which pertain to the account of the accused/revision petitioner and which contain the signature, in the possession of the complainant. As the contradictions and not vital, as far as the case of the complainant is concerned and especially when there is no probable case from the side of the defence to rebut the presumption under Section 139 of the N.I Act. I find no reason to interfere with the Crl. R.P. No.218/2011 3 concurrent findings of the trial court as well as the appellate court. 4. As this court is not inclined to interfere with the order of conviction and sentence recorded by the courts below, the learned counsel for the revision petitioner submitted that some breathing time may be granted to the revision petitioner to pay the compensation amount. Considering the facts and circumstances involved in the case, I am of the view that the said submission can be considered positively. The Hon'ble Apex Court in the decision reported in Damodar S.Prabhu v. Sayed Babalal .H. (JT 2010 (4) SC 457) has held that, in case of dishonour of cheques, the compensatory aspect of the remedy should be given priority over the punitive aspects. In the light of the above decision and considering the fact that, the cheque in question is dated 10.05.2007 for an amount of `.1,80,000/-, I am of the view that while granting some time to the revision Crl. R.P. No.218/2011 4 petitioner, the compensation amount ordered by the appellate court can be enhanced slightly. In the result, this revision petition 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, while confirming the sentence of imprisonment ordered by the appellate court, the direction to pay the compensation to the complainant is modified and accordingly, the revision petitioner is directed to pay a sum of `.1,95,000/- (Rupees One lakh ninety five thousand only) being the compensation to the complainant under Section 357(3) of Cr.P.C and in default, 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 25.04.2011 to receive the sentence of imprisonment and to pay the modified compensation amount. If there is any default Crl. R.P. No.218/2011 5 on the part of the revision petitioner in appearing before the court below on the above date and paying the compensation amount, the trial court is free to take coercive steps against revision petitioner and to execute the sentence and for realisation of the compensation amount. The coercieve steps, if any pending against the revision petitioner shall be deferred till 25.04.2011. Revision petition is disposed of accordingly. Sd/- (V.K.MOHANAN), Judge ss/. //True Copy// P.A to Judge