IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932 Crl.Rev.Pet.No. 1965 of 2010() ------------------------------ CRA.511/2009 of ADDL.SESSIONS COURT (ADHOC III), N.PARUR. CC.1149/2006 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA .................... PETITIONER(S): APPELLANT/ACCUSED: ------------------------------------------------------------ NARAYANDAS, S/O.RAMACHANDRAN, AGED 52, PEECHAMPILLY HOUSE, P.N.BHAVAN, BARRACK LANE, ALUVA, ERNAKULAM (DIST) PIN 683101. BY ADV. SRI.ANIL K.MOHAMMED RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE: ------------------------------------------------------------------------------------------ 1. RADHAKRISHNAN, S/O.KRISHNAN NAIR, HARISHREE HOUSE, EAST KADUNGALOOR, U.C.COLLEGE (PO), ALUVA TALUK, ERNAKULAM (DIST), PIN 683 101. 2. STATE REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY PUBLIC PROSECUTOR SRI. VENUGOPAL M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1965 of 2010 ------------------------------- Dated this the 28th 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 5.1.2006 for a sum of Rs.2,00,000/-, 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 approached the Judl. First Class Magistrate Court-I, Aluva, by filing a formal complaint, upon which cognizance was Crl. R.P.No.1965 of 2010 2 taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.1149/06. 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. 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 1 year and to pay a compensation of Rs.2,00,000/- for the offence punishable u/s.138 of NI Act and the default sentence is fixed as 60 days simple imprisonment. 3. Though an appeal was filed at the instance of the Crl. R.P.No.1965 of 2010 3 revision petitioner/accused, by judgment dated 31.3.2010 in Crl.A.511/09, the Court of Addl. District & Sessions Judge (Ad hoc-III), N.Paravur, allowed the appeal only in part, confirming the conviction of the revision petitioner u/s.138 of Negotiable Instruments Act but modifying and reducing the sentence to simple imprisonment for 6 months and to pay a fine of Rs.2,00,000/- and in default to undergo simple imprisonment for a further term of 1 month. It is also directed that the entire fine amount, when realised, shall be given to the complainant/1st respondent 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 Crl. R.P.No.1965 of 2010 4 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 fine amount and also submitted that the sentence of imprisonment ordered by the courts below may be set aside as the same are exorbitant and unreasonable. 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 Crl. R.P.No.1965 of 2010 5 5.1.2006, that too for an amount of Rs.2,00,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.2,00,000/-, which belonged to the complainant is in the hands of the revision petitioner for the last 4 years. It is also relevant to note that the revision petitioner has now crossed the age of 50 years. Considering the above facts and legal position, I am of the view that, while reducing the sentence of imprisonment, the fine amount can be enhanced slightly with appropriate default sentence and the revision petitioner can be granted 3 months time to pay the fine 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. Accordingly, the sentence of imprisonment is reduced to one day simple imprisonment ie., till rising of the court and he is also sentenced to pay a fine of Rs.2,20,000/-, within 3 months from today and in case of default in paying the fine amount, within the stipulated time, the revision petitioner is directed to undergo Crl. R.P.No.1965 of 2010 6 simple imprisonment for 6 months. On realisation of the fine amount, a sum of Rs.2,15,000/- shall be paid to the complainant as compensation u/s.357(1)b) of Cr.P.C. and the remaining amount shall be paid to the State Exchequer. Accordingly, the revision petitioner is directed to appear before the trial court on 28.10.2010, to receive the sentence of imprisonment and to pay the fine amount 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 payment of fine 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/