IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 20TH SEPTEMBER 2010 / 29TH BHADRA 1932 Crl.Rev.Pet.No. 2750 of 2010() ------------------------------------ (CRA.148/2008 of II ADDL. ASSISTANT SESSIONS COURT, TRIVANDRUM CC.89/2006 of C.C.NO.89/2006 OF THE JUDICIAL FIRST CLASS MAGISTRATE-V, NEYYATTINKARA.) .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ----------------------------------------------------- G.RAMACHANDRAN,PROPERITOR, PERFECT SERVICE, KOVIVILA VEEDU, TC 22/1618 MANNANMOOLA, PERURKADA P.O.,THIRUVANANTHPAURAM. BY ADV. SRI.M.RAMASWAMY PILLAI RESPONDENT(S): -------------------- 1. S.SASI,CHAITHANYA, MULLOOR P.O., VIZHINJAM, THIRUVANANTHAPURAM. 2. STATE OF KERALA,PREPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT. C.M. CHARISMA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SVS/ V.K. MOHANAN, J ---------------------- Crl.R.P.No. 2750 OF 2010 ----------------------------------- Dated this the 20th 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 court below. 2. The case of the complainant is that the accused/revision petitioner, towards the discharge of debt of Rs.1,00,000/-which due to the complainant, the accused issued Ext.P1 cheque dated 31.05.2005 for an amount of Rs.1,00,000/- which when presented for encashment dishonoured, due to the reason that there was no sufficient fund in the account maintained by the accused and the cheque amount was not repaid in spite of formal demand notice and thus the revision petitioner has committed the offence punishable under section 138 of Negotiable Instruments Act. With the said allegation, the complainant approached the Judicial First Class Magistrate Court-II, Neyyattinkara, by filing a formal complaint, upon which cognizance was taken u/s.138 of Crl.R.P. No.2750/10 2 Negotiable instruments Act and instituted S.T.No.3644/2005. Thereafter the case was transferred to Judicial First Class Magistrate Court - V, Neyyattinkara, where the case is renumbered as CC.89/06. During the trial of the case, complainant himself mount the box and examined as PW1 and produced Exts.P1 to P6 documents as Prosecution exhibits. Though no document was produced from the side of the defence, DW1 was examined, who is none other than the accused from the side of 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 the debt due to the complainant. Thus accordingly, the court held 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 accused/revision petitioner to undergo simple imprisonment for six months and he is also sentenced to pay a fine of Rs.1,00,000/-. The default sentence is fixed as two months imprisonment. It is also ordered that if the fine amount is realised, the same shall be given to the complainant as Crl.R.P. No.2750/10 3 compensation u/s.357(1) of Cr.P.C. 3. Though an appeal was filed at the instance of accused/revision petitioner, by judgment dated 29.1.2010 in Criminal Appeal No.148/2008, the court of Additional Sessions Judge-II, Thiruvananthapuram allowed the appeal only in part and thus while confirming the conviction of the revision petitioner u/s.138 of N.I Act, the sentence of simple imprisonment ordered by the trial court is modified and reduced the same into one day simple imprisonment, ie., till rising of the court. The trial court was also directed the revision petitioner to pay compensation of Rs.1,05,000/- to the complainant u/s 357(3) of Cr.P.C. In default, simple imprisonment for six months. The appellate court directed the revision petitioner to appear before the trial court on 10.3.2010 to serve the modified sentence. It is the above conviction and sentence challenged in this revision petition. 4. I have head 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 Crl.R.P. No.2750/10 4 execution and issuance of the cheque. The counsel for the revision petitioner further submitted that the courts below has committed wrong in convicting the revision petitioner. 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 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 order of conviction recorded by the courts below, learned counsel for the revision petitioner submitted that breathing time may be granted to revision petitioner to pay compensation amount. According to me, the said prayer can be considered favourably and three months time can be granted to pay the compensation amount but subject to slight enhancement in the amount. 7. The cheque involved in this case is for an amount of Rs.1,00,000/- as per the findings of court below, which approved by this court, the said amount belongs to the complainant but the same is with the revision petitioner till now. 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 Crl.R.P. No.2750/10 5 cheques, the compensatory aspect of the remedy should be given priority over the punitive aspects. On hearing the counsel appearing for both sides and considering the above facts and settled legal position, I am of the view that the revision petitioner can be directed to pay an amount as compensation to the respondent/complainant. In the result, this revision petition is disposed of confirming the conviction against revision petitioner u/s 138 of Negotiable Instrument Act, as recorded by the courts below. Thus, while confirming the sentence of imprisonment, and direction to pay the compensation, the amount is enhanced by Rs.1,10,000/- and the revision petitioner is granted three months time to pay compensation amount. The default sentence fixed by the appellate court will be attracted only if he fails to pay the compensation amount within the time extended by this court. Accordingly the revision petitioner is directed to appear before the trial court on 20.12.2010 to receive the sentence of imprisonment and to pay compensation amount of Rs.1,10,000/- as fixed by this court. In case of any failure on the part of the revision petitioner in appearing before the court below at the above date and making payment, the trial court is free to take Crl.R.P. No.2750/10 6 coercive steps to secure the presence of the petitioner and to execute the sentence and for realisation of the compensation amount. On realisation of the compensation amount, the same shall be paid to the complainant u/s. 357(3) of Cr.P.C. The coercive steps if any pending, shall be deferred till 20.10.2010. This criminal revision petition is disposed of accordingly. Sd/- V.K. MOHANAN, JUDGE. Sou. The date “20.10.2010”occurring in the 5th line of the last page of the final order dated 20/09/2010 in Crl.R.P 2750/2010 is corrected as “20.12.2010”vide order dated 26/10/2010 in Crl.M.A 9839/2010 in Crl.R.P 2750/2010. sd/- Registrar (Judicial) Crl.R.P. No.2750/10 7