IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 24TH SEPTEMBER 2010 / 2ND ASWINA 1932 Crl.Rev.Pet.No. 2754 of 2010() ------------------------------------------- CRA.75/2009 of SESSIONS COURT, KASARAGOD CC.370/2008 of CHIEF JUDICIAL MAGISTRATE COURT, KASARAGOD .................... REVN. PETITIONER/APPELLANT/ACCUSED: ---------------------------------------------------------------- DINESH KUMAR. K, AGED 40 YEARS LECTURER, DEPARTMENT OF KANNADA GOVERNMENT COLLEGE, VIDYANAGAR PO, KASARAGOD. BY ADV. SRI.T.B.SHAJIMON, SMT.GOVINDU P.RENUKADEVI. RESPONDENTS/COMPLAINANT/STATE: --------------------------------------------------------- 1. PRAVEENRAJ, AGED 40 YEARS S/O.BHASKARA, HILL HOUSE, GANDI NAGER MANJESHWAR PO, KASARAGOD. 2. STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY PUBLIC PROSECUTOR SMT.C.M. CHARISMA. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2754 of 2010 ------------------------------- Dated this the 24th 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.1,50,000/- and towards the discharge of the said liability, the accused issued a cheque dated 15.4.2008 for a sum of Rs.1,50,000/-, 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 approached the Chief Judl. Magistrate Court-Kasaragod, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments 2 Crl. R.P.No.2754 of 2010 Act and instituted C.C.No.370/08. During the trial of the case, PW1, the complainant himself was examined from the side of the complainant and Exts.P1 to P6 were marked. 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 1 year and also ordered the revision petitioner to pay a fine of Rs.1,55,000/-, failing which the revision petitioner was directed to undergo simple imprisonment for 5 months. It is also ordered that on realisation of the fine amount, a sum of Rs.1,50,000/- shall be given to the complainant as compensation u/s.357(1) of Cr.P.C. 3 Crl. R.P.No.2754 of 2010 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 24.5.2010 in Crl.A.75/09, the Court of Sessions Judge, Kasaragod, allowed the appeal only in part and thus while confirming the conviction, the sentence of imprisonment imposed against the accused by the trial court is reduced to 10 days simple imprisonment, whereas the sentence to pay fine amount and the default sentence are confirmed. 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 4 Crl. R.P.No.2754 of 2010 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 conviction recorded by the courts below, the learned counsel for the revision petitioner submitted that, the revision petitioner is a lecturer by profession and 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 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 positively but subject to other facts 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 15.4.2008, that too for an amount of 5 Crl. R.P.No.2754 of 2010 Rs.1,50,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.1,50,000/- which belonged to the complainant is in the hands of the revision petitioner for the last 2 years. It is also a fact that the revision petitioner is now at the age of 40 years and presently working as a lecturer in a Government college. 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 set aside and the sentence can be confined to fine only but the fine 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, in suppression of the sentence of imprisonment, the revision petitioner is sentenced to pay a fine of Rs.1,80,000/-, within 3 months from today, and in case of any default in paying the fine amount within the above stipulated period, the revision petitioner is directed to undergo simple 6 Crl. R.P.No.2754 of 2010 imprisonment for 6 months. Accordingly, the revision petitioner is directed to deposit the fine amount on or before 23.12.2010. In case, any failure on the part of the revision petitioner 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. If the fine amount is realised, a sum of Rs.1,75,000/- 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 execution of warrant if any, pending against the revision petitioner shall be deferred till 23.12.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/