IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 1ST MARCH 2011 / 10TH PHALGUNA 1932 Crl.Rev.Pet.No. 536 of 2011() ----------------------------------------- CRA.236/2009 of ADDL. SESSIONS COURT (ADHOC)-II, PALAKKAD ST.2074/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ALATHUR .................... REVN. PETITIONER(S): ACCUSED ------------------------------------------------- A.BASHEER, S/O. CHUNDAKATTIL ABDUL KADAR AGED 44 YEARS, CHUNDAKAD, KAVASSERY P.O., ALATHUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.BABY MATHEW RESPONDENT(S): COMPLAINANT ------------------------------------------------- 1. V.PRABHAKARAN, S/O. LATE KRISHNAN NAIR, AGED 67 YEARS, THONOOR HOUSE, PARUVASSERY POST, ALATHUR, PALAKKAD DISTRICT. 680 741. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031. R2 BY PUBLIC SMT.REKHA C.NAYAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss V.K.MOHANAN, J. --------------------------------------------- Crl.R.P.No. 536 of 2011 --------------------------------------------- Dated this the 1st day of March, 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. The case of the first respondent/complainant against the revision petitioner/accused is that towards the discharge of the liability due to the complainant, the accused issued Ext.P1 cheque dated 15.7.2007 for a sum of `.6 lakhs which, when presented for encashment, was dishonoured for want of sufficient fund in the account maintained by the revision petitioner and the petitioner failed to pay the cheque amount, even though he was requested for the same by issuing a statutory notice. With the said allegation, the complainant approached the Crl.R.PNO. 536 of 2011 :-2-: Judicial First Class Magistrate Court, Alathur whereupon S.T.No.2074 of 2007 was instituted taking cognisance for the offence under Section 138 of the N.I.Act. During the trial of the above case, the first respondent/complainant adduced his evidence consisting of the documentary evidence such as Exts.P1 to P8 and the oral evidence of himself and another as PWs.1 and 2. No evidence either oral or documentary was 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 held that, the complainant has established the case against the revision petitioner/accused and consequently, found that the accused is guilty and thus, he is convicted under Section 138 of the N.I.Act. On such conviction, the trial court sentenced the revision petitioner to undergo simple Crl.R.PNO. 536 of 2011 :-3-: imprisonment for six months and also further directed to pay fine of `.6,00,000/- and the default sentence is fixed as three months simple imprisonment. 3. Though an appeal was filed against the above conviction and sentence by the revision petitioner/accused, as per judgment dated 10.11.2010 in Crl.A.No. 236 of 2009, the court of the Additional Sessions Judge, Fast Track Court No.II, Palakkad dismissed the appeal confirming the conviction and sentence imposed by the trial court. It is the above conviction, sentence and direction to pay the fine, challenged in this Crl.R.P. 4. I have heard learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. 5. Learned counsel for the revision petitioner vehemently submitted that the complainant has miserably failed to prove the transaction and it is also the submission of the learned counsel that if the case of the complainant is Crl.R.PNO. 536 of 2011 :-4-: accepted as true, it will amount to bribe. I am unable to sustain the above contention. The specific case of the complainant is that a job was offered to the complainant's daughter-in-law by the revision petitioner, who is the Manager of the H.A.U.P.School, Akkara, Kavasseri, but the revision petitioner miserably failed to give job as offered by him and therefore, when the complainant demanded back the money, the accused issued the cheque in question. The trial court as well as the appellate court have concurrently found that Ext.P1 cheque is issued towards the discharge of the liability that arose out of the transaction between the complainant and the revision petitioner. 6. The learned counsel for the revision petitioner submitted that the job of the daughter-in-law was lost because of the division fall and thereafter, the son of the complainant came to the house of the revision petitioner and had forcefully taken a cheque after obtaining the signature of the revision petitioner under threat and Crl.R.PNO. 536 of 2011 :-5-: intimidation and the said cheque is misused for filing the present complaint. Absolutely, no evidence is adduced by the defence to substantiate such contention. Mere denial of the transaction claimed by the complainant is not sufficient to discharge the burden on the accused to rebut the presumption. In the present case, except the mere explanation of counsel for the revision petitioner, there is no evidence or material on record. In the absence of any positive evidence in support of the defence taken by the revision petitioner, I find no reason to interfere with the concurrent findings of the courts below and therefore, the finding of guilt and conviction is confirmed. 7. Learned counsel for the revision petitioner submitted that the sentence of imprisonment ordered against the revision petitioner is exorbitant and unreasonable. It is also the submission of the learned counsel that some breathing time may be granted to the revision petitioner to pay the fine amount. Crl.R.PNO. 536 of 2011 :-6-: 8. It is relevant to note that the cheque in question is dated 15.7.2007 that too for an amount of `.6,00,000/- and so far, no amount is paid to the complainant in spite of the findings and directions issued by the courts below. The trial court as well as the appellate court found that the said amount is due to the complainant. Even after the appellate court judgment, no amount is given to the complainant. In this juncture, it is also relevant to note that the Honourable Apex Court in the 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. Having regard to the facts and legal position, I am of the view that the sentence of imprisonment ordered against the revision petitioner requires modification, but at the same time, the interest of the complainant has also to be protected. Crl.R.PNO. 536 of 2011 :-7-: In the result, this Criminal 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, the sentence of imprisonment ordered by the court below is modified and reduced to one day's simple imprisonment, i.e., till the rising of the court. In addition to the above modified sentence of imprisonment and while confirming the sentence of fine ordered by the court below, the fine amount is enhanced and the revision petitioner is directed to deposit fine of `.6,75,000/- (Rupees Six Lakhs Seventy Five Thousand only) in the trial court within three months from today. In default, the revision petitioner is directed to undergo simple imprisonment for a period of six months. Accordingly, the revision petitioner is directed to appear before the trial court on 1st June,2011 to receive the modified sentence of imprisonment and to deposit the above fine amount. In case of any failure on the part of the Crl.R.PNO. 536 of 2011 :-8-: revision petitioner to appear in the trial court to receive the modified sentence of imprisonment and to deposit the fine amount on the above date, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence. On realisation of the fine amount, a sum of `.6,70,000/- shall be paid to the complainant as compensation under Section 357(1)(b) of the Cr.P.C. and the remaining amount of `.5,000/- shall be deposited in the State Exchequer. Coercive steps, if any, pending against the revision petitioner shall be deferred till Ist June,2011. V.K.Mohanan, Judge. MBS/ Crl.R.PNO. 536 of 2011 :-9-: Reiterating the stand taken by the defence during the trial as well as the appellate stage, the learned counsel for the revision petitioner submitted that the complainant has not established the transaction, execution and issuance of the cheque. The above submission is purely on the basis of the facts, evidence and materials on record which are already considered in detail by the trial court as well as the lower appellate court. The petitioner miserably failed to make out a case so as to interfere with such concurrent findings arrived on by the courts below. Therefore, the conviction recorded by the courts below is only required to be approved. I do so. 6. Learned counsel for the revision petitioner Crl.R.PNO. 536 of 2011 :-10-: submitted that a breathing time may be granted to the revision petitioner to pay the compensation. 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 slight enhancement in the amount of compensation. Accordingly, this Criminal 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, the sentence of imprisonment now ordered by the lower appellate court is confirmed and the compensation amount is enhanced to Rs.,000/- which shall be paid by the revision petitioner within three months from today and in case of any default in paying the amount, the revision petitioner is directed to undergo simple imprisonment for three months and on realisation of the compensation amount, the entire amount shall be paid to the complainant under Section 357(3) of the Crl.R.PNO. 536 of 2011 :-11-: Cr.P.C. Accordingly, the revision petitioner/accused is directed to appear before the trial court on .11.2010 to receive the sentence and to deposit the compensation amount. In case of any failure on the part of the revision petitioner in appearing before the trial court and making the deposit of compensation amount on the above date, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence. Coercive steps, if any, pending against the petitioner shall be deferred till .11.2010. Crl.R.PNO. 536 of 2011 :-12-: V.K.MOHANAN, J. -------------------------------------------- Crl.A.NO. OF 200 ------------------------------------ J U D G M E N T Crl.R.PNO. 536 of 2011 :-13-: DATED: -2-2010 Crl.R.PNO. 536 of 2011 :-14-: