IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 21ST JUNE 2010 / 31ST JYAISTHA 1932 Crl.Rev.Pet.No. 1856 of 2010() ------------------------------------- CRA.124/2008 of ADDL. SESSIONS COURT (ADHOC), PATHANAMTHITTA CC.326/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT, THIRUVALLA ................................................................ REVN. PETITIONER(S): APPELLANT/ACCUSED ----------------------------------------------------------------- SUDHEESH.N, S/O.NATESHAN, PUTHENPARAMPIL HOUSE, CHANGANKERI PO, EDATHUA,ALAPPUZHA DISTRICT. BY ADV. SRI.ABRAHAM SAMSON SMT.LOVELY SAMSON RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ------------------------------------------------------------------------------------- 1. EAPEN T.THOMAS, THITTAMEL HOUSE, CHUMATHARA,KUTTAPUZHA VILLAGE, THIRUVALLA TALUK, (PROPRIETOR,M/S.HOSPITAL GOODS, OPP CHILANKA THEATRE,THIRUVALLA). 2. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI. PUBLIC PROSECUTOR SMT.PUSHPALATHA M.K. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1856 of 2010 ------------------------------- Dated this the 21st day of June, 2010. O R D E R The accused in a prosecution for the offence u/s.138 of Negotiable Instruments Act is the revision petitioner, who is aggrieved by the order of conviction and sentence imposed against him by the courts below. 2. The revision petitioner was working with the complainant who is conducting a shop by name 'Hospital Goods' at Thiruvalla. According to the complainant, a sum of Rs.1,27,300/- was due from the revision petitioner, which he was collected from the sale of the goods of the complainant and accordingly when the amount was demanded back, the revision petitioner issued a cheque for an amount of Rs.1,27,300/- dated 23.2.2004 and when the said cheque presented for encashment, it was dishonoured for want of sufficient funds in the account, maintained by the revision petitioner and he had also failed to repay the amount inspite of statutory notice and hence according to the complainant, the accused had committed the offence under Crl. R.P.No.1856 of 2010 2 Section 138 of the Negotiable Instruments Act. 3. With the said allegation, the complainant approached the Judicial First Class Magistrate Court, Thiruvalla, by filing a formal complaint upon which cognizance was taken for the offence u/s.138 of Negotiable Instruments Act and instituted C.C.No.326/04. During the trial, the complainant himself was examined as PW1 and he produced Exts.P1 to P8 documents. No evidence either oral or documentary produced from the side of the defence. The trial court found that the complainant has established his case and thereby entitled to get the presumption u/s.139 of Negotiable Instruments Act. Thus the trial court has found that the accused is guilty and he is sentenced to undergo simple imprisonment for 6 months and to pay a sum of Rs.1,07,300/- to the complainant towards compensation and in case of default he is further directed to undergo simple imprisonment for a further period of 3 months u/s.357 of Cr.P.C. Aggrieved by the order of conviction and sentence, the revision petitioner has filed an appeal, and by judgment dated 30.4.2010 Crl. R.P.No.1856 of 2010 3 in Crl.A.No.124/08, the court of Addl. District and Sessions Judge (Ad hoc) Court-I, Pathanamthitta, dismissed the appeal confirming the conviction but subject to modification with respect to the sentence. Accordingly, the lower appellate court set aside the default sentence, of simple imprisonment for 3 months fixed by the trial court. It is the above order of 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. The learned counsel for the revision petitioner submitted that though the cheque amount was for Rs.1,27,300/-, the trial court ordered to pay a sum of Rs.1,07,300/- only, as compensation and that amount was fixed after considering the payment of Rs. 20,000/-, made by the complainant on 29.4.2004. It is also the contention of the learned counsel that the accused/revision petitioner had paid a sum of Rs.10,000/- to the complainant which could not brought to the notice of the trial Crl. R.P.No.1856 of 2010 4 court, since the receipt of such payment was missing ; but during the pendancy of the appeal, the receipt has been traced out and it was brought to the notice of the appellate court and the appellate court in its judgment, especially in para 7, it is observed that an amount of Rs.10,000/- was given on 28.6.2004, but that was connected with another transaction. According to the learned counsel, the above observation is not correct and an amount of Rs.10,000/- has already been paid to the complainant, which amount is liable to be deducted from the total amount due to the complainant. Thus on the basis of the above fact, the learned counsel submitted that the matter may be remanded back to the trial court, so as to enable the revision petitioner to adduce evidence regarding the payment of Rs.10,000/-. 6. I am unable to accept the above submission of the learned counsel. Going by the impugned judgments of the courts below, it can be seen that the accused has no consistent case against the claim of the complainant. On the submission made by the learned counsel and as per the impugned order, it Crl. R.P.No.1856 of 2010 5 can be seen that the revision petitioner has admitted the transaction claimed by the complainant and towards the discharge of the said liability, even according to the complainant, he had altogether paid a sum of Rs.30,000/-. But as such there is no evidence on record to show that he had paid Rs.10,000/- to the complainant. During the trial the contention raised by the revision petitioner is to the effect that when he joined as an employee of the complainant, he executed a blank cheque in favour of the complainant as a security and the cheque in question is now misused by the complainant for the purpose of the present case. The above divergent and unestablished plea of the defence itself is sufficient to hold that the accused/revision petitioner miserably failed to rebut the presumption, which is available in favour of the complainant. Though the complainant had sent a registered notice on the dishonour of the cheque, no reply was given by the revision petitioner. It is also relevant to note that when the trial court disposed of the case, though the cheque is for an amount of Rs.1,27,300/-, the compensation Crl. R.P.No.1856 of 2010 6 amount is fixed as Rs.1,07,300/-, after deducting a sum of Rs.20,000/-, which would strengthen the case of the complainant that the revision petitioner is liable to pay certain amount to the complainant, connected with the transaction claimed by him. These are all factual issues, which were properly considered by the trial court as well as the lower appellate court and resolved the same by holding the liability of the revision petitioner. Therefore, I find no reason to interfere with the concurrent findings arrived on by the courts below regarding the liability of the revision petitioner. 7. On the basis of Annexure B, the discharge card issued from T.D.Medical College Hospital, Alleppey, the learned counsel for the revision petitioner submitted that the revision petitioner is undergoing treatment and it will be difficult for him to raise such a huge amount and also submitted that some breathing time may be granted to raise the fund. 8. The apex court in a recent decision reported in Damodar S.Prabhu V. Sayed Babalal H. (JT 2010(4) SC 457) has held Crl. R.P.No.1856 of 2010 7 that, in the case of dishonour of cheques, the compensatory aspect of the remedy should be given priority over the punitive aspects. Considering the above legal position, I am of the view that some breathing time can be granted to the revision petitioner to deposit the compensation amount and a lenient view can be taken in the matter of sentence also. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner u/s.138 of Negotiable Instruments Act as recorded by the trial court as well as the lower appellate court. Accordingly, the revision petitioner is sentenced to undergo simple imprisonment till rising of the Court and the revision petitioner is further sentenced to pay a sum of Rs.1,07,300/- as fine and in default in paying the fine amount he is directed to undergo simple imprisonment for a period of 6 months and on realisation of the fine amount, the same shall be paid to the complainant u/s.357(1)(b) of Cr.P.C. Accordingly, the revision petitioner is directed to appear before the trial court on 22.9.2010, to receive the sentence and to deposit the fine Crl. R.P.No.1856 of 2010 8 amount. If there is any failure on the part of the revision petitioner in appearing before the court below as directed above and in making the payment, 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. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/