IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 11TH FEBRUARY 2011 / 22ND MAGHA 1932 Crl.Rev.Pet.No. 399 of 2011() ----------------------------------- CRA.682/2007 of DISTRICT & SESSIONS COURT, TRIVANDRUM ST.1008/2006 of JUDICIAL FIRST CLASS MAGISTRATE COURT-VII, THIRUVANANTHAPURAM .................... REVISION PETITIONER/APPELLANT/ACCUSED ------------------------------------------------------ MOHANAN, S/O.SHANMUGHAN ASARI, TC 19/1542, NEELA BHAVAN, THAMALAM, POOJAPPURA, THIRUVANANTHAPURAM. BY ADV. SRI.T.GOPALAKRISHNAN RESPONDENT(S): REPONDENTS/COMPLAINANT AND STATE ---------------------------------------------------------------------- 1. K.SANTHAMMA, W/O.NATESAN ASARI, MELEPUTHENVEEDU, THAMALAM, POOJAPPURA, THIRUVANANTHAPURAM-695002. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 BY ADV. SRI.G.SUDHEER R2 BY PUBLIC PROSECUTOR SRI.V.TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs V.K.MOHANAN, J. - - - - - - - - - - - - - - - - - - - Crl. R.P. No.399 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of February, 2011. O R D E R The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act, 1881 (for short ‘the N.I Act’) approached this Court by preferring the above revision petition challenging his conviction and sentence, imposed as per judgments of the trial court as well as the lower appellate court. 2. I have heard learned counsel for the revision petitioner as well as counsel for the respondents. 3. Learned counsel for the revision petitioner submitted that the trial court as well as the appellate court miserably failed to find that the complainant has not established the execution and the issuance of the cheque. According to the learned counsel, the cheque in question was handed over to the complainant by the father of the revision petitioner and according to the counsel there was no transaction between the accused Crl. R.P. No.399/2011 2 and the complainant. The trial court as well as the lower appellate court concurrently found that, the cheque in question was executed and issued by the revision petitioner to discharge his liability due to the complainant. It is also clear from the records which referred to by the court below that, though a demand notice was sent to the revision petitioner, the same was returned as 'unclaimed'. No useful and acceptable evidence has adduced by the defence to substantiate the defence version. According to the courts below, when PW1 was examined, she had deposed in terms of the allegation contained in the complaint. It is also relevant to note that, to substantiate the claim of the complainant; she has produced Ext.P1 cheque, which is pertained to the account of the accused/revision petitioner. It is true that the signature contained therein is disputed by the accused/revision petitioner. But no legal step was taken to effectively challenge the Crl. R.P. No.399/2011 3 same. Learned Magistrate, in paragraph 10 of the judgment, after verification of the records has found that the signature contained in Ext.P1 cheque, on a comparison, tallying with the signature contained in the admitted documents, especially the signature that contained in the deposition and the 313 statement of the accused. In this juncture, it is also relevant to note that there is no plausible and convincing explanation, as to how the cheque in question reached in the hands of the complainant. In the light of the above facts and circumstances, I am unable to sustain the above argument and I am not inclined to interfere with the concurrent findings and the order of conviction recorded by the courts below. 3. As this court is not inclined to interfere with the order of conviction and sentence recorded by the courts below, the learned counsel for the revision petitioner submitted that the sentence of fine imposed by the Crl. R.P. No.399/2011 4 court below is highly arbitrary and exorbitant and therefore some leniency may be shown to the petitioner and further submitted that time may be granted to the revision petitioner to pay the compensation amount. 4. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission requires consideration. In the present case, the cheque in question is dated 28.02.2003 and the amount covered by the cheque is due to the complainant for the last seven years. In the light of the decision reported in Damodar S.Prabhu v. Sayed Babalal .H. (JT 2010 (4) SC 457) has held that, in case of dishonour of cheques, the compensatory aspect of the remedy should be given priority over the punitive aspects. In the light of the above facts and legal position, I am of the view that while granting time to the revision petitioner to pay the fine amount, fine amount can be enhanced slightly. Crl. R.P. No.399/2011 5 In the result, this revision petition is disposed of confirming the conviction of the revision petitioner as recorded by the court below and also confirming the sentence of imprisonment as modified and fixed by the appellate court. The revision petitioner is directed to deposit a fine of Rs.2,25,000/-(Rupees Two lakhs twenty five thousand only) within three (3) months from today. If there is any default, he is directed to undergo simple imprisonment for a period of four (4) months. Accordingly, the revision petitioner is directed to appear before the trial court on 12.05.2011, to receive the sentence of imprisonment and to pay the modified fine amount. If there is any failure on the part of the revision petitioner in appearing before the court below and paying the modified fine amount on the above date, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence and for realisation of the fine amount. On Crl. R.P. No.399/2011 6 realisation of the fine amount, a sum of Rs.2,20,000/- (Rupees Two lakhs twenty thousand only) shall be given to the complainant as compensation under Section 357 (1)(b) of Cr.P.C and Rs.5,000/-(Rupees Five thousand only) shall be deposited in the State Exchequer. The coercive steps if any pending against the revision petitioner shall be deferred till 12.05.2011. Revision petition is disposed of accordingly. Sd/- (V.K.MOHANAN), Judge ss/. //True Copy// P.A to Judge