IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 8TH JUNE 2010 / 18TH JYAISTHA 1932 Crl.Rev.Pet.No. 1703 of 2010() ------------------------------ CRA.97/2009 of ADDL.SESSIONS JUDGE (ADHOC-I), MANJERI CC.152/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, MANJERI .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED :- -------------------------------------------------------------------- K.SUNDARAN, S/O.AYYAPPAN EZHUTHACHAN, PHILLIS DRESS MAKERS, NEAR BUS STAND, PANDIKKAD.P.O, NILAMBUR, MALAPPURAM DISTRICT. BY ADVS. MR.BABU S. NAIR SMT.M.T.SHEEBA RESPONDENT(S)/RESPONDENTS/STATE & COMPLAINANT :- ------------------------------------------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKLAM, KOCHI-31. 2. MAMBADAN MUHAMMEDKUTTY, S/O.AHAMMED, MAMBADAN HOUSE, KUNDILAPADAM, NEELENCHERI.P.O, KALIKAVU, MALAPPURAM DISTRICT. PUBLIC PROSECUTOR MR.M.R.VENUGOPAL THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt V.K.MOHANAN, J. ----------------------------- Crl.R.P.No.1703 of 2010 --------------------------------- Dated this the 8th day of June 2010 O R D E R The revision petitioner is the accused in a prosecution for the offence under Sec.138 of the N.I.Act. 2. The case of the complainant is that the accused issued cheque for Rs.2,50,000/- to the complainant against the discharge of liability due to the complainant. When the said cheque presented for encashment the same is dishonoured for want of sufficient fund in the account maintained by the accused. Thus he had forced to sent a lawyer notice to the accused and according to the complainant in spite of the lawyer notice, no amount was paid and thus the accused committed the offence under Sec.138 of the N.I.Act. With the above allegation, a formal complaint was preferred before the Judicial First Class Magistrate-I, Manjeri, upon which cognizance was taken Crl.R.P.No.1703 of 2010 : 2 : for the said offence and C.C.No.152/2007 was instituted. During the trial of the case the complainant himself examined as PW1 and he produced Exts.P1 to P7 documents. On the side of the defence Pws.1 and 2 were examined and also produced Ext.D1. The trial court after considering the above evidence and the plea set up by the accused came into the conclusion that the complainant has proved the case beyond reasonable doubt and the accused/revision petitioner failed to rebut the presumption. Thus, according to the trial court, the revision petitioner/accused has committed the offence and thus, he is convicted. Consequently, the accused/revision petitioner is sentenced to undergo simple imprisonment for a period of three months under Sec.138 of the N.I.Act. He is also directed to pay a compensation of Rs.2,50,000/- to the complainant under Sec.357(3) of Cr.P.C. and the default sentence is fixed as three months simple imprisonment. Aggrieved by the above order of conviction and sentence, Crl.R.P.No.1703 of 2010 : 3 : though the revision petitioner had preferred an appeal, by judgment dated 27.3.2010 in Crl.A.No.97/2009 of the court of Additional Sessions Judge (Adhoc)-I, Manjeri, allowed the appeal only in part and confirmed the conviction. But certain modifications were made with respect to the sentence. Accordingly, the sentence of imprisonment reduced till rising of the court. The order of compensation and the default sentence is also confirmed. Thus, the revision petitioner is directed to pay the compensation within two months from the date of receipt of the judgment. Thus the above verdicts of the trial court as well as the lower appellate court are challenged in this revision petition. 3. I have heard Mr.Babu S. Nair, the learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. 4. The learned counsel for the revision petitioner vehemently submitted that the trial court as well as the Crl.R.P.No.1703 of 2010 : 4 : lower appellate court committed a serious mistake in extending the presumption under Sec.139 of the N.I.Act in favour of the complainant since the complainant has miserably failed to establish the transaction which he claimed and pleaded against the revision petitioner. It is also the contention of the learned counsel that the revision petitioner has established that the cheque in question is the one which he entrusted with the brother of the complainant connected with another transaction. Thus, according to the learned counsel, the court below erroneously convicted and sentenced the revision petitioner. 5. I have carefully considered the arguments of the learned counsel for the revision petitioner and also perused the judgments of the courts below. It can be seen that the complainant has adduced evidence on the basis of his pleading and allegation in the complaint against the revision petitioner and in support of his contention and claim he had produced Ext.P1 cheque from his possession, Crl.R.P.No.1703 of 2010 : 5 : which is signed by the revision petitioner. Of course, the revision petitioner has denied the transaction claimed by the complainant. In support of such plea, the defence has also examined Dws.1 and 2 and produced Ext.D1. The specific plea taken by the defence is to the effect that he never conducted such a business as claimed by the complainant and there was no such transaction with the complainant. These questions are purely based on facts which are elaborately considered by the trial court as well as the lower appellate court, which are the fact finding authorities, and found against the revision petitioner. The oral testimony of PW1 positively established his case and though PW1 was subjected to cross examination, according to the court below the evidence of PW1 remain intact. The evidence produced by the accused according to the trial court as well as the lower appellate court are not sufficient to discredit the version of PW1. From the facts and circumstances involved in the case it can be seen that Crl.R.P.No.1703 of 2010 : 6 : though the accused had denied the claim of the complainant regarding the transaction connected with the conduct of jewelery shop, Ext.P4 notice dated 9.2.2007 was sent in the jewelery address of the accused and the same was accepted either by himself or on his behalf. There is no proper explanation for the same. If he had not conducted the jewelery shop, the lawyer notice addressed in the same address need not be received or accepted by himself or on behalf of him. According to the counsel, the same was not received by the revision petitioner/accused. Another case raised by the revision petitioner is to the effect that the cheque in question was one among the two cheque leaves that entrusted with the brother of the complainant when the revision petitioner/accused had transaction with him connected with property sales. The above contention or plea of the accused is not seen substantiated. The positive evidence of the complainant, which is available on record would show that the allegation is substantiated by the Crl.R.P.No.1703 of 2010 : 7 : complainant that too by producing Ext.P1 cheque which signed by the accused, from the possession of the complainant. Thus the complainant is entitled to the benefit under Sec.138 of the N.I.Act. When the signature in Ext.P1 cheque is admitted, it is for the revision petitioner to give a proper and correct explanation as to how Ext.P1 cheque reached in the hands of the complainant. Though the accused has tried to explain the same, the same is not seen materialised. All these questions are based upon facts which concurrently found against the revision petitioner by the trial court as well as the lower appellate court. Therefore, I find no reason to interfere with such findings of the court below and hence there is no merit in the revision petition. 6. The learned counsel for the revision petitioner submitted that some breathing time may be granted to the revision petitioner to make the payment and also a lenient view may be taken in the matter of sentence. I am of the Crl.R.P.No.1703 of 2010 : 8 : view that the said prayer can be allowed, but subject to other relevant facts and circumstances involved in the case. The cheque in question covers an amount of Rs.2,50,000/-, which according to the complainant, is his money. Though the trial court sentenced the revision petitioner to undergo simple imprisonment for three months and also ordered an amount of compensation, under Section 357(3) of the Cr.P.C., the Sessions Court reduced the imprisonment till the rising of the court and maintained the order of compensation under Section 357(3) of the Cr.P.C. and also maintained the default sentence. Thereafter, the revision petitioner was granted two months time to pay the compensation. Accordingly, the revision petitioner was directed to appear before the trial court on 24.5.2010. 7. The Apex Court, in the decision, reported in Ahammed Kutty v. Abdullakoya [(2009) 6 SCC 660], has held that while exercising the jurisdiction under Section 357(3) of the Cr.P.C., no sentence of imprisonment can be Crl.R.P.No.1703 of 2010 : 9 : ordered for default of compensation. In the light of the above facts and circumstances, I am of the view that sentence of imprisonment ordered against the revision petitioner can be set aside, but at the same time, a sentence of fine can be imposed, by fixing a reasonable amount as fine considering the dictum laid down by the Supreme Court in the decision reported in Damodar.S.Prabhu v. Sayed Babalal.H. [JT 2010(4) SC 457] wherein it was held that in the case of dishonour of cheques, the compensatory aspect of the remedy should be given priority over the punitive aspects and also to ensure the payment of the amount, under Section 357(1)(b) of the Cr.P.C. In the result, this Criminal Revision Petition is disposed of confirming the conviction of the revision petitioner as recorded by the trial court as well as the lower appellate court under Section 138 of the N.I.Act. The sentence of imprisonment awarded against the revision petitioner is set aside and he is sentenced to pay a fine of Crl.R.P.No.1703 of 2010 : 10 : Rs.2,60,000/- (Rupees Two Lakhs Sixty Thousand only) and in default of paying the fine amount, he is directed to undergo simple imprisonment for a period of six months. On realization of the fine amount, a sum of Rs.2,55,000/- shall be paid to the complainant under Section 357(1)(b) of Cr.P.C. Accordingly, the revision petitioner is directed to appear before the trial court on 8th September, 2010 to deposit the fine amount. In case of any failure on the part of the revision petitioner in appearing before the court below, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence of fine. Coercive steps, if any, pending against the revision petitioner will stand deferred till 8th September, 2010. V.K.MOHANAN, JUDGE. Jvt