IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 6TH SEPTEMBER 2010 / 15TH BHADRA 1932 Crl.Rev.Pet.No. 2635 of 2010() ------------------------------ CRA.710/2007 of II ADDL. SESSIONS COURT, TRIVANDRUM CC.59/2006 of JUDICIAL FIRST CLASS MAGISTRATE-V, NEYYATTINKARA. .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- K.SADANANDAN, S/O.ISSAC, AISWARYA BHAVAN, AKG NAGAR, PARASSALA VILLAGE, THIRUVANANTHAPURAM. BY ADVS. SRI.SUMAN CHAKRAVARTHY SMT.K.R.RIJA RESPONDENT(S): COMPLAINANT & STATE: ----------------------------------- 1. JUSTIN FRANCIS, S/O.FRANCIS, MAHADEVARVILA HOUSE, AYIRADESOM KARODE-695 034. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SRI.V.TEK CHAND, PUBLIC PROSECUTOR FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ami/ V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2635 of 2010 ------------------------------- Dated this the 6th 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.2,50,000/- from the complainant and towards the discharge of the debt, he issued a cheque dated 1.6.2005 for a sum of Rs.2,50,000/-, 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 initially approached the Judl. First Class Magistrate Court-II, Neyyattinkara, by filing a formal complaint, upon which Crl. R.P.No.2635 of 2010 2 cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.2873/05. Subsequently, the case was transferred to the Judicial First Class Magistrate Court-V, Neyyattinkara, wherein the case is renumbered as C.C.No.59/06. 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. Though no document was produced on the side of the defence, Dws.1 and 2 were examined. 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 to pay a compensation of Rs.2,55,000/- u/s.357(3) of Cr.P.C. and Crl. R.P.No.2635 of 2010 3 the default sentence was fixed as 4 months simple imprisonment. 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 1.7.2010 in Crl.A.710/07, the Court of Addl. Sessions Judge-Trivandrum, allowed the appeal only in part and while confirming the conviction, sentenced the revision petitioner to undergo one day simple imprisonment ie., till the rising of the court and directing to pay a compensation of Rs.2,60,000/- to the complainant u/s.357 (3) of Cr.P.C. and the default sentence was fixed as 1 year simple imprisonment. It is also ordered that on realisation of the compensation amount, the entire amount shall be paid to the complainant and directed the revision petitioner to appear before the trial court on 30.8.2010. 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 Crl. R.P.No.2635 of 2010 4 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. As this court is not inclined to interfere with the order of conviction recorded by the courts below, the counsel for the revision petitioner submitted that, some breathing time may be granted to pay the compensation amount. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered but subject to other relevant 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 Crl. R.P.No.2635 of 2010 5 aspect of the remedy should be given priority over the punitive aspects. In the present case, the cheque in question is dated 1.6.2005, for an amount of Rs.2,50,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.2,50,000/-, which belonged to the complainant is with the revision petitioner for the last 5 years. 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, while the sentence of imprisonment and the direction to pay the compensation amount as ordered by the lower appellate court is maintained and the revision petitioner is granted one month time to pay the compensation amount and in case of default in paying the compensation amount, within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for 1 year as ordered by the lower appellate court. Accordingly, the revision petitioner is directed to appear before the trial court on 6.10.2010, to receive the sentence of imprisonment and to pay the Crl. R.P.No.2635 of 2010 6 compensation amount. In case any failure on the part of the revision petitioner in appearing before the court below as directed above and in making the payment 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. The coercive steps if any, pending against the revision petitioner shall be deferred till 6.10.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/