IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 23RD JULY 2010 / 1ST SRAVANA 1932 Crl.Rev.Pet.No. 2189 of 2010() ------------------------------ CRA.740/2006 of ADDL.DISTRICT & SESSIONS COURT (ADHOC)-II, KOTTAYAM CC.754/2004 of JUDL. MAGISTRATE OF FIRST CLASS-II (MOBILE), KOTTAYAM .................... REVN. PETITIONER(S): REVISION PETITIONER ---------------------------------------- Y.C.DAS, GEO SANITATIONS, STEP JUNCTION, NALANCHIRA, THIRUVANANTHAPURAM. BY ADV. SRI.M.J.THOMAS RESPONDENT(S): --------------- 1. KELACHANDRA PIPE INDUSTRIES, CHINGAVANAM, KOTTAYAM, REPRESETNED BY POWER OF ATTORNEY HOLDER A.K.GEORGEKUTTY. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SRI.B.JAYASURYA, PUBLIC PROSECUTOR. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ami/ V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2189 of 2010 ------------------------------- Dated this the 23rd 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 4.12.2001 for a sum of Rs.61,423/-, 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 same allegation, the complainant approached the Judicial First Class Magistrate Court-II, Kottayam, by filing a formal complaint, upon which cognizance Crl. R.P.No.2189 of 2010 2 was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.754/04. During the trial of the case, PW1 was examined from the side of the complainant and Exts.P1 to P7 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 till rising of the court and to pay a sum of Rs.65,000/- as compensation to the complainant u/s.357(3) of Cr.P.C. and the default sentence is fixed as 2 months imprisonment. 3. Though an appeal is filed at the instance of the revision petitioner/accused, by judgment dated 13.3.2009 in Crl.A.740/06, the Court of Sessions, Kottayam Division, dismissed the appeal, Crl. R.P.No.2189 of 2010 3 confirming the conviction and sentence of the revision petitioner u/s.138 of Negotiable Instruments Act. 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 courts below against the revision petitioner u/s.138 of Negotiable Instruments Act, is approved. 6. The counsel for the revision petitioner submitted that, some breathing time may be granted to pay the compensation amount and the petitioner may be permitted to pay the compensation directly to the complainant. I am of the view that the Crl. R.P.No.2189 of 2010 4 said submission can be considered but subject to other relevant materials 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 4.12.2001, for an amount of Rs.61,423/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.61,423/-, which belonged to the complainant, is in the hands of the revision petitioner for the last 9 years. Considering the above facts and legal position, I am of the view that, the revision petitioner can be granted 2 months time to pay the compensation amount. 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. The sentence of imprisonment and direction to pay compensation also confirmed. Accordingly, the revision petitioner is granted 2 months time to Crl. R.P.No.2189 of 2010 5 pay the compensation amount as ordered by the courts below. Accordingly, the revision petitioner is directed to appear before the trial court on 23.9.2010 to receive the sentence and to pay the compensation amount. It is made clear that the revision petitioner is free to pay the compensation amount either directly to the complainant or by remitting the same in the trial court, which ever subject to the satisfaction of the learned Magistrate of the trial court. In case any failure on the part of the revision petitioner in appearing before the court below as directed above and in paying the 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 him. If any coercive steps pending against the revision petitioner, the same shall be deferred till 23.9.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/