IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 16TH SEPTEMBER 2010 / 25TH BHADRA 1932 Crl.Rev.Pet.No. 2680 of 2010(D) -------------------------------------------- [CRL.A.NO.41/2007 OF II ADDL.SESSIONS COURT, KOLLAM ST.NO.60/2006 OF THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT-IV, KOLLAM] .................... REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------------- RADHAKRISHNA PILLAI,PROPRIETOR,REMYA HOTEL,EAST KALLADA.P.O,CHITTUMALA,THEKKEMURI WARD, EAST KALLADA VILLAGE,KOLLAM DISTRICT. BY ADVS. SRI.C.RAJENDRAN, SMT.R.S.SREEVIDYA. RESPONDENTS/RESPONDENTS/COMPLAINANT: ---------------------------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. 2. VICTOR CLETUS,S/O.PATHROSE, VIJO VILASO,KOIKKAL MURI,EAST KALLADA.P.O, KOLLAM DISTRICT,PIN-691 502. R1 BY PUBLIC PROSECUTOR SMT. SUMANGALA.P.N. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2680 of 2010 ------------------------------- Dated this the 16th day of September, 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 borrowed a sum of Rs.70,000/- from the complainant and towards the discharge of the debt due to the complainant, he issued a cheque dated 13.11.2001 for a sum of Rs.70,000/-, which when presented for encashment dishonoured, as there was no sufficient fund in the account maintained by 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 said allegation, the complainant initially approached the Judl. First Class Magistrate Court-II, Kollam, by filing a formal 2 Crl. R.P.No.2680 of 2010 complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.1146/03. Subsequently, the case was made over to the Court of Judicial First Class Magistrate-IV, Kollam, wherein the case is renumbered as S.T.No.60/06. During the trial of the case, the complainant himself was mounted to the box and gave evidence as PW1 and Exts.P1 to P5 were marked, from the side of the complainant. No evidence either oral or documentary 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 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 a period of 9 3 Crl. R.P.No.2680 of 2010 months and also directed to pay a fine of Rs.73,000/- and the default sentence was fixed as 3 months simple imprisonment. It is also ordered that on realisation of the fine amount, a sum of Rs.70,000/- shall be paid to the complainant as compensation u/s.357(1)(b) of Cr.P.C. 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 19.3.2010 in Crl.A.41/07, the Court of 2nd Addl. Sessions Judge, Kollam, dismissed the appeal, but subject to modification with respect to the sentence. Accordingly, the appellate court reduced the sentence of imprisonment to till the rising of the court and the revision petitioner is directed to pay a fine of Rs.70,000/-, which on realisation shall be paid to the complainant and in default of payment, he is directed to undergo simple imprisonment for 15 days. 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 4 Crl. R.P.No.2680 of 2010 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 courts below against the revision petitioner u/s.138 of Negotiable Instruments Act, is approved. 6. As this court is not inclined to interfere with the order of conviction recorded by the courts below, the counsel for the revision petitioner submitted that, some breathing time may be granted to pay the fine amount. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered but subject to slight enhancement in the fine amount. 7. The apex court in a recent decision reported in Damodar 5 Crl. R.P.No.2680 of 2010 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 13.11.2001, for an amount of Rs.70,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.70,000/-, which belonged to the complainant is with the revision petitioner for the last 9 years. So, while granting some time to pay the fine amount, the amount can be enhanced slightly. 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, while confirming the sentence of imprisonment as modified and fixed by the courts below and while maintaining the sentence to pay fine, the fine amount is enhanced to the tune of Rs.1,00,000/-, which shall be paid within 3 months from today and in default the revision petitioner is directed to undergo simple 6 Crl. R.P.No.2680 of 2010 imprisonment for a period of 2 months. Accordingly, the revision petitioner is directed to deposit the fine amount on or before 17.12.2010. In case any failure on the part of the 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. On realisation of the fine amount, a sum of Rs.95,000/- shall be paid to the complainant as compensation u/s.357(1)(b) of Cr.P.C. and the remaining amount shall be paid to the State Exchequer. The coercive steps if any, pending against the revision petitioner shall be deferred till 17.12.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/