IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 8TH JULY 2010 / 17TH ASHADHA 1932 Crl.Rev.Pet.No. 1993 of 2010() ------------------------------ CRA.195/2008 of III ADDL.SESSIONS COURT, KOLLAM ST.177/2005 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOLLAM .................... REVN. PETITIONER(S): APPELLANT ------------------------------ EMARENCY CRISTESUM, EMARENCY BHAVAN, KAKKOTTUMOOLA, MAYYANAD, KOLLAM. BY ADV. SRI.C.RAJENDRAN RESPONDENT(S): RESPONDENTS -------------------------- 1. K. RAJENDRA PRASAD, KRISHNA NIVAS, MAYYANAD, KOLLAM. 2. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADVS. SRI. K.SIJU FOR R1 SRI.A.MUHAMMED RAFFI FOR R1 SRI.M.R.VENUGOPAL, PUBLIC PROSECUTOR. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ami/ V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1993 of 2010 ------------------------------- Dated this the 8th day of July, 2010. O R D E R This revision petition is preferred by the accused in a prosecution for an offence u/s.138 of Negotiable Instruments Act, 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 26.10.2004 for a sum of Rs.1,50,000/-, 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-II, Kollam, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted Crl. R.P.No.1993 of 2010 2 S.T.No.177/05. During the trial of the case, the complainant himself was examined as PW1 from the side of the complainant and Exts.P1 to P6 were marked. Though no witness was examined from the side of defence, Exts.D1 to D3 documents were marked. 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 a fine of Rs.1,70,000/- and the default sentence is fixed as 3 months simple imprisonment. It is also ordered that on realisation of fine amount, it shall be paid to the complainant u/s.357(1) of Cr.P.C. 3. In appeal, by judgment dated 11.12.2009 in Crl. R.P.No.1993 of 2010 3 Crl.A.No.195/08, the Court of IIIrd Addl. Sessions Judge, Kollam, though dismissed the appeal, confirming the conviction, the sentence is modified reducing the term of imprisonment till rising of the court and to pay fine of Rs.1,50,000/- and in default of payment directed the revision petitioner to undergo simple imprisonment for 3 months. On realisation of the fine amount, the same shall be paid to complainant 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 to interfere with the concurrent findings of the trial court as well as the lower appellate court. Therefore, I find no merit in the Crl. R.P.No.1993 of 2010 4 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 deposit the fine amount. I am of the view that the 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 26.10.2004, for an amount of 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/- is in the hands of the revision petitioner for the last 6 years. Thus while granting some time to pay the fine amount, I am of the view that the amount can be Crl. R.P.No.1993 of 2010 5 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. The revision petitioner is sentenced to undergo simple imprisonment for one day ie., till rising of the court, as ordered by the lower appellate court but the revision petitioner is sentenced to pay a fine of Rs.1,65,000/-, within 3 months from today and in default he is directed to undergo simple imprisonment for 3 months. Accordingly, the revision petitioner is directed to appear before the trial court on 7.10.2010. On realisation of the amount, a sum of Rs.1,62,500/- shall be paid to the complainant u/s.357(1) of Cr.P.C. The remaining amount of Rs.2,500/- shall be paid to the State Exchequer. V.K.MOHANAN, Judge. ami/