IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 14TH SEPTEMBER 2010 / 23RD BHADRA 1932 Crl.Rev.Pet.No. 1718 of 2010(D) ------------------------------------- (CRA.136/2006 of ADDL.SESSIONS COURT (ADHOC)-II, KOTTAYAM CC.7/2000 of JUDL.MAGISTRATE OF FIRST CLASS-III, KOTTAYAM) .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ----------------------------------------------------- P.A.APREM, S/O.APREM, PADINJATTEPARAMBIL HOUSE, VIZHICKATHODU P.O., KANJIRAPPALLY, KOTTAYAM DISTRICT. BY ADV. SMT.A.SREEKALA RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE ----------------------------------------------------------------------- 1. M/S.MAHARASTRA APPEX CORPORATION LTD., REGISTERED OFFICE, SYNDICATE HOUSE, MANIPAL-576119 UDUPI DISTRICT, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER, N.KRISHNAKUMAR, S/O.RAMAN, BRANCH MANAGER, M/S.MAHARASTRA APPEX CORPORATION LTD.,BRANCH OFFICE, SASTRI ROAD, KOTTAYAM. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. C.M. CHARISMA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SVS/ V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1718 of 2010 ------------------------------- Dated this the 14th 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, in discharge of the liability due to the complainant, the accused/revision petitioner issued a cheque dated 15.9.1998 for a sum of Rs.51,168/-, 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 approached the Judl. First Class Magistrate Court-III, Kottayam, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.7/00. During the trial of the case, Pws.1 2 Crl. R.P.No.1718 of 2010 and 2 were examined from the side of the complainant and Exts.P1 to P9 were marked. From the side of the defence, DW1 was examined and Ext.D1 was 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 2 months and also ordered the revision petitioner to pay a sum of Rs.51,168/- to the complainant as compensation u/s.357(3) of Cr.P.C., failing which the revision petitioner was directed to undergo simple imprisonment for 2 months. 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 18.12.2009 in 3 Crl. R.P.No.1718 of 2010 Crl.A.136/06, the Court of Addl. District & Sessions Judge (Ad hoc)-II, Kottayam, dismissed the appeal, confirming the conviction and sentence imposed against the accused by the trial court. 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. The learned counsel for the revision petitioner submitted that, the complainant has not established the transaction and the liability alleged by the complainant. It is also the submission of the learned counsel for the revision petitioner that the cheque in question was one among the several cheques given to the complainant by way of security and one of such cheques, which is marked as Ext.P2, misused by the complainant for the purpose of filing the present complaint. According to the learned counsel, the trial court as well as the lower appellate court simply believed the case of the complainant and no attempt was made to 4 Crl. R.P.No.1718 of 2010 appreciate the defence put forwarded by the accused. 6. I am unable to sustain the above contention. It is an admitted case that there was a hire purchase agreement between the complainant and the accused, for a sum of Rs.2,35,000/- and the specific condition stipulated in such an agreement is to the effect that, to repay the amount by way of installments. It is also beyond dispute that the accused has not paid the amount strictly in accordance with the agreement and there was failure in depositing the installment amount in time and according to the complainant, the cheque in question was issued by the accused towards the discharge of the entire liability that arose out of the hire purchase agreement. The courts below after considering the evidence and materials, found in favour of the complainant and accordingly held that the cheque in question was issued by the accused towards the discharge of the liability due to the complainant. Both the courts after considering the evidence and materials found that the accused has no convincing explanation as to how Ext.P2 cheque came into the possession 5 Crl. R.P.No.1718 of 2010 of the complainant. Even if the contention of the learned counsel for the revision petitioner is accepted that, the cheque in question was given as a security, two decisions of this court is against the revision petitioner. If a blank cheque is given as a security connected with any transaction, it is upto the holder of the cheque to fill up the same and to present the cheque for encashment. In the present case even though the accused has admitted that there was a hire purchase agreement, he has no case that the liability due out of the agreement has been cleared. It is also for the accused to appraise the court as to why no step was taken to get back the cheque, if the liability due to the complainant is cleared. In the absence of any convincing and acceptable explanation supported by materials, I find no reason to interfere with the findings of the courts below that the evidence adduced by the accused is not sufficient to rebut the presumption available u/s.139 of NI Act in favour of the complainant. Having regard to the facts and circumstances involved in the case, especially when there is no dispute regarding the hire purchase 6 Crl. R.P.No.1718 of 2010 agreement and the default in paying the installments in time, and especially when the cheque in question contained the signature of the revision petitioner and produced from the possession of the complainant it is for the accused to give a proper and convincing explanation regarding the entire transaction and also how the cheque in question reached in the possession of the complainant. In the present case there is no such explanation. Hence no ground is made out to interfere with the concurrent findings of the courts below and accordingly the conviction of the revision petitioner is approved. 7. As this court is not inclined to interfere with the conviction recorded by the courts below, the learned counsel for the revision petitioner submitted that the sentence of imprisonment imposed against the revision petitioner is unreasonable and exorbitant and it require to be set aside and also further submitted that, some breathing time may be granted to pay the compensation amount. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be 7 Crl. R.P.No.1718 of 2010 considered but subject to other facts and circumstances involved in the case. 8. 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 complainant is a co-operative institution and the cheque in question is dated 15.9.1998, that too for an amount of Rs.51,168/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.51,168/- which belonged to the complainant is with the revision petitioner for the last 12 years. Considering the above facts and settled legal position, I am of the view that the sentence of imprisonment ordered against the revision petitioner can be modified and reduced and while granting some time to the revision petitioner to pay the compensation amount, the amount can be enhanced slightly. In the result, this revision petition is disposed of confirming 8 Crl. R.P.No.1718 of 2010 the conviction against the revision petitioner u/s.138 of Negotiable Instruments Act as recorded by the courts below. Accordingly, the sentence of imprisonment awarded by the courts below is modified and reduced to one day simple imprisonment ie., till the rising of the court. Whereas, the compensation amount ordered by the appellate court u/s.357(3) of Cr.P.C. is enhanced to the tune of Rs.75,000/-, which shall be paid by the revision petitioner, within 3 months from today and in case of default in paying the compensation amount within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for 3 months. Accordingly, the revision petitioner is directed to appear before the trial court on 14.12.2010, to receive the sentence of imprisonment and to pay the compensation amount as directed by this court. In case, any failure on the part of the revision petitioner in appearing before the court below as directed above and in making the payment of compensation amount, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence 9 Crl. R.P.No.1718 of 2010 awarded against the revision petitioner. The execution of warrant if any, pending against the revision petitioner shall be deferred till 14.12.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/