IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 23RD JUNE 2010 / 2ND ASHADHA 1932 Crl.Rev.Pet.No. 1893 of 2010() ------------------------------------- CRA.269/2006 OF ADDL. DIST. & SESSIONS COURT (ADHOC-III), KOLLAM CC.1119/2004 of JUDL.MAGISTRATE OF FIRST CLASS-I, PUNALUR .................................................................................... REVN. PETITIONER(S): ------------------------------ VISWAKUMAR @ BABU,ADAVIKONATHY VEEDU, VILLUMALA, KULATHUPUZHA. BY ADV. SRI.PRATHEESH.P RESPONDENT(S): ----------------------- 1. SIBI J.THOMAS, KUTTIYIL VEEDU, ARYANKAVU. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERANKULAM,KOCHI. PUBLIC PROSECUTOR MR. VENUGOPAL M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1893 of 2010 ------------------------------- Dated this the 23rd 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 11.10.2002 for a sum of Rs.2,00,000/-, which when presented for encashment dishonoured 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 Judicial First Class Magistrate Court-I, Punalur, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted Crl. R.P.No.1893 of 2010 2 C.C.No.1119/04. During the trial of the case, PW1 was examined from the side of the complainant and Exts.P1 to P9 were marked. From the side of the defence, Dws.1 to 3 were examined and Exts.D1 and D2 were marked. 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 1 month and to pay a sum of Rs.2,00,000/- 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/ accused by judgment dated 22.3.2010 in Crl.A.269/06, the Court Crl. R.P.No.1893 of 2010 3 of Addl. District and Sessions Judge (Ad hoc)III, Kollam, confirmed the conviction and sentence passed by the trial court. Accordingly, the revision petitioner is directed to undergo simple imprisonment for 1 month and to pay a sum of Rs.2,00,000/- 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 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 Crl. R.P.No.1893 of 2010 4 courts below against the revision petitioner u/s.138 of Negotiable Instruments Act, is approved. 6. The counsel for the revision petitioner submitted that, some breathing time may be granted to deposit the compensation amount and also submitted that a lenient view may be taken in the matter of sentence. 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 over the punitive aspects. In the present case, the cheque in question is dated 11.10.2002, for an amount of Rs.2,00,000/-. The courts below had ordered the compensation and the amount is fixed only equivalent to the amount shown in the cheque. Thus as per the records, as on today and the findings of the courts below, which approved by this court, a sum of Rs.2,00,000/- is in the hands of Crl. R.P.No.1893 of 2010 5 the revision petitioner for the last 7 ¾ years. Considering the above facts and legal position, I am of the view that, the sentence of imprisonment can be set aside and the compensation amount and the default sentence 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 and the sentence of imprisonment awarded by the courts below is set aside. Accordingly, the revision petitioner is sentenced to pay a fine of Rs.2,30,000/- and in case of default in paying the fine amount, the revision petitioner is directed to undergo simple imprisonment for 6 months. On realisation of the fine amount, a sum of Rs.2,25,000/- shall be paid to the complainant u/s.357(1) (b) of Cr.P.C. Accordingly, the revision petitioner is directed to appear before the trial court on 23.9.2010 to pay the fine amount as directed by this court. In case any failure on the part of the Crl. R.P.No.1893 of 2010 6 revision petitioner in appearing before the court below as directed above and in paying the fine 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 petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/