IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 19TH JULY 2010 / 28TH ASHADHA 1932 Crl.Rev.Pet.No. 2081 of 2010() ------------------------------ CRA.521/2007 of ADDITIONAL DISTIRCT & SESSIONS COURT (ADHOC)-II, KOTTAYAM. ST.494/2004 of JUDL.MAGISTRATE OF FIRST CLASS-I, KANJIRAPPALLY .................... REVN. PETITIONER(S): REVISION PETITIONER/APPELLANT/ACCUSED ---------------------------------------------------------- AJA BASHEER, W/O.BASHEER, VALIYICKAL VEEDU, PARAKKADAVU KARA, KANJIRAPPALLY P.O. BY ADV. SRI.V.S.AFSAL KHAN RESPONDENT(S): RESPONDENTS/COMPLAINANT -------------------------------------- 1. RAJESH KUMAR.M.M., S/O.MURALEEDHARA MENON, KOOLAKKUNNEL HOUSE, PONKUNNAM. 2. STATE OF KERALA, REPRESENTED BY THE DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. BY ADVS. SRI.LIJI.J.VADAKEDOM FOR R1 SRI.VENUGOPAL M.R., PUBLIC PROSECUTOR FOR R2. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ami/ V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2081 of 2010 ------------------------------- Dated this the 19th day of July, 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, towards the discharge of a debt due to the complainant, issued a cheque dated 3.3.2004 for a sum of Rs.30,000/-, which when presented for encashment dishonoured 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 same allegation, the complainant approached the Judicial First Class Magistrate Court-I, Kanjirappally, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.494/04. During Crl. R.P.No.2081 of 2010 2 the trial of the case, PWs.1 & 2 were examined from the side of the complainant and Exts.P1 to P11 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 3 months and to pay compensation of Rs.30,000/- and the default sentence is fixed as 45 days simple imprisonment. It is also ordered that on realisation of compensation amount, it shall be paid to the complainant u/s.357(3) of Cr.P.C. 3. In appeal, at the instance of the revision petitioner/ accused, by judgment dated 4.8.2009 in Crl.A.521/07, the Court Crl. R.P.No.2081 of 2010 3 of Sessions, Kottayam Division, allowed the appeal only in part, and thus while confirming the conviction of the revision petitioner u/s.138 of Negotiable Instruments Act, certain modifications effected with respect to the sentence of imprisonment imposed by the trial court. Accordingly, the revision petitioner is directed to undergo simple imprisonment till rising of the court and to pay a fine of Rs.30,000/- and in default to undergo simple imprisonment for 1 month. It is also ordered that on realisation of the fine amount, the same shall be paid to the complainant as compensation u/s.357(1)(b) of Cr.P.C. 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 Crl. R.P.No.2081 of 2010 4 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 conviction, the counsel for the revision petitioner submitted that, some breathing time may be granted to deposit the compensation amount. I am of the view that the said submission can be considered but subject to slight enhancement of the fine amount. 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 3.3.2004, for an amount of Rs.30,000/-. Thus as per the records and the findings of the courts below, which approved by this Crl. R.P.No.2081 of 2010 5 court, a sum of Rs.30,000/- is in the hands of the revision petitioner for the last 6 years. Considering the above facts and legal position, I am of the view that, while maintaining the sentence of imprisonment as ordered by the lower appellate court, the revision petitioner can be further directed to pay compensation instead of fine, within three months from today. 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, the revision petitioner is directed to undergo simple imprisonment till rising of the court, as ordered by the lower appellate court and he is directed to pay a sum of Rs.33,000/-, within three months from today, to the complainant as compensation u/s.357(3) of Cr.P.C. and in case of default in paying the compensation, the revision petitioner is directed to undergo simple imprisonment for 1 month. Accordingly, the revision petitioner is directed to appear before the trial court on 18.10.2010 to pay the compensation amount and to receive the Crl. R.P.No.2081 of 2010 6 sentence 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 deposit 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 awarded against the revision petitioner. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/