IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 24TH MAY 2010 / 3RD JYAISHTA 1932 Crl.Rev.Pet.No. 1555 of 2010() ------------------------------ CRA.600/2008 of ADDL. SESSIONS COURT (FAST TRACK-III), PALAKKAD ST.554/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT-III, PALAKKAD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ---------------------------------------------------------------- ANILKUMAR, S/O.VISWANATHAN, AGED 39 YEARS, KADAMBIDI VEEDU, INDIRA NAGAR, DHONI, PALAKKAD. BY ADVS. SRI.A.R.GANGADAS SRI.M.L.SURESH KUMAR RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ------------------------------------------------------------------------------------ 1. P.V.ARAVINDAKSHAN, S/O.VELAYUDHAN, PUTHEN VEEDU, KAMMANTHARA, VADAKKANCHERY, PALAKKAD DISTRICT. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV.SRI.M.R.VENUGOPAL, PUBLIC PROSECUTOR FOR R2. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ami/ V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1555 of 2010 ----------------------------------- Dated this the 24th day of May, 2010. O R D E R Having failed in to consecutive stage of litigation, the accused in a prosecution for the offence u/s.138 of the Negotiable Instruments Act approached this court by filing the above revision petition, challenging his conviction and sentence u/s.138 of NI Act. 2. The case of the complainant is that, the accused had borrowed a sum of Rs.60,000/- from the complainant, during the month of August 2006 and when demanded for the repayment of the amount, the accused issued a cheque dated 15.12.2006, which when presented for encashment dishonoured and hence the complainant approached Judicial First Class Magistrate Court-III, Palakkad, by filing a complaint upon which cognizance was taken and instituted S.T.No.554/07. During the course of the trial, the complainant adduced his evidence consists of his own oral testimony as PW1 and the documentary evidence of Exts.P1 to P5. Though the accused has not adduced any oral Crl. R.P.No.1555 of 2010 2 evidence, he produced Ext.D1, a postal card. The trial court as well as the lower appellate court has concurrently found that, the complainant has established his case beyond reasonable doubt and accordingly the revision petitioner/accused found guilty u/s.138 of Negotiable Instruments Act. Thus the trial court on conviction of the revision petitioner, sentenced him to undergo simple imprisonment for one month and to pay a fine of Rs.60,000/- and the default sentence is fixed as one month simple imprisonment. Though an appeal was filed, challenging the above conviction and sentence, at the instance of the revision petitioner, by judgment dated 23.1.2010 in Crl.A.No.600/08, the lower appellate court allowed the appeal only in part and while confirming the conviction, the sentence of imprisonment was set aside and the sentence of fine has enhanced to the tune of Rs.70,000/- and the default sentence is fixed as one more month simple imprisonment. It was also directed by the lower appellate court that, in case the fine amount is realised, the same shall be given to the complainant as compensation u/s.357(1) of Cr.P.C. It is the above conviction Crl. R.P.No.1555 of 2010 3 and sentence challenged in this revision petition. 3. I have heard the learned counsel for the revision petitioner and also perused the judgments of the courts below. The learned counsel vehemently submitted that, the complainant has not succeeded in establishing the case against the revision petitioner and there is no evidence or materials in support of the prosecution case and on the other hand, by producing Ext.D1, the accused had succeeded in establishing that, there was no transaction between the accused and the complainant and the actual transaction was between the accused and one P.P.K.Menon and Mani. 4. I am unable to accept the above contention. The learned counsel has no case that Ext.D1 contained any reference to the cheque, in question. Ext.D1 is a letter issued by the said Mani, demanding the accused to return the amount. The said letter is not sufficient to discard or disprove the case of the complainant. When the complainant produced the cheque in question from his possession, it is to the defence to examine the said Mani or P.P.K.Menon and no evidence was adduced to the Crl. R.P.No.1555 of 2010 4 effect that the cheque in question, was one which entrusted with them by the revision petitioner, connected with the transaction between them. In the absence of any such evidence, in this regard Ext.D1 letter is not sufficient to accept the case of defence and to disbelieve the case of the complainant. The trial court as well as the lower appellate court after having a detail discussion, concurrently found that the complainant has established his case and the defence miserably failed to rebut the presumption, which is otherwise available in favour of the complainant. In the light of the above facts and circumstances, I am of the view that both the courts below are perfectly legal and correct in holding that the complainant has established his case against the accused and finding guilt of the accused. Therefore there is no merit in the revision petition. 5. The learned counsel for the revision petitioner submitted that, a breathing time may be granted to the revision petitioner to make the deposit of the fine amount. According to me, the said submission can be considered in favour of the revision petitioner. At the very same time, it is also relevant to note that Crl. R.P.No.1555 of 2010 5 the cheque in question is dated 15.12.2006 and therefore a sum of Rs.60,000/- was with the revision petitioner atleast for the last 4 years. It was on the basis of the above fact, the lower appellate court while setting aside the sentence of imprisonment, sentenced the revision petitioner only to pay a fine and thus the fine amount was fixed as Rs.70,000/-. The 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. In the light of the above decision of the apex court, I am of the view that some time can be granted to the revision petitioner as requested by the counsel for him, but the fine amount can be enhanced to the tune of Rs.75,000/- and the default sentence can also be enhanced to three months simple imprisonment. In the result, this criminal revision petition is disposed of confirming the conviction of the revision petitioner, u/s.138 of Negotiable Instruments Act as recorded by the trial court as well as the lower appellate court and the sentence of fine is modified Crl. R.P.No.1555 of 2010 6 by enhancing the fine amount to the tune of Rs.75,000/- and in default on the part of the revision petitioner, in paying the fine amount, he is directed to undergo simple imprisonment for a period of 3 months. Accordingly, the revision petitioner is directed to appear before the trial court to make the deposit of fine amount on 26.8.2010. In case of failure on the part of the revision petitioner, in appearing before the court below as directed above and depositing the fine amount, the trial court is free to take coercive steps to procure the presence of the revision petitioner and to execute the sentence. On realisation of the fine amount, the same shall be paid to the complainant as compensation u/s.357(1) of Cr.P.C. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/