IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 3RD AUGUST 2010 / 12TH SRAVANA 1932 Crl.Rev.Pet.No. 1829 of 2010() ------------------------------ CRA.405/2008 of I ADDL. SESSIONS COURT, PALAKKAD ST.1127/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PALAKKAD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------------------ SAIDALI, MOIDEEN KUTTY, KOTTAYIL HOUSE, PUNNATHALA POST, VALANCHERY, MALAPPURAM. BY ADV. SRI.VINOD KUMAR.C RESPONDENT(S): / RESPONDENT / COMPLAINANT ------------------------------------------------------------------------- 1. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. 2. T.R.AUTO FINANCE 47/7, GENERAL MUTHAIH STREET, SOWCARPET, CHENNAI, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER V.P.KANNANUNNI, RECOVER MANAGER, T.R.AUTO FINANCE, NO.469, PUDUSSERY BUILDING, V.H.ROAD, PALAKKAD. BY PUBLIC PROSECUTOR MR.VENUGOPAL M.R THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: dmb V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1829 of 2010 ------------------------------- Dated this the 3rd day of August, 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 stood as a guarantor for the hire purchase agreement, entered into by the complainant and one hirer, with respect to the vehicle bearing Regn.No.KL-10 A/7619 bus, for a total sum of Rs.1,43,500/- and for the repayment of the same, by 25 equal monthly installments, @ Rs.6,000/- for first 20 monthly installments and Rs.7,600/- for the remaining 5 installments. According to the complainant, though the initial installments were paid, the amount covered by 5 installments were not paid and hence on demand, the accused issued the cheque dated 7.2.2006 for an amount of Rs.78,274/-, which when presented Crl. R.P.No.1829 of 2010 2 for encashment dishonoured for want of 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, Palakkad. By filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.1127/06. During the trial of the case, PW1, the complainant himself was examined from the side of the complainant and Exts.P1 to P9 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 Crl. R.P.No.1829 of 2010 3 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.78,274/- to the complainant u/s.357(3) of Cr.P.C. and the default sentence is fixed as 3 months imprisonment. 3. Though an appeal was filed, at the instance of the revision petitioner/ accused, by judgment dated 31.3.2010 in Crl.A.405/08, the Court of Sessions, Palakkad Division, allowed the appeal only in part and while confirming the conviction imposed against the revision petitioner by the trial court u/s.138 of Negotiable Instruments Act, the sentence of imprisonment ordered by the trial court has set aside and instead of that the revision petitioner is sentenced to pay a fine of Rs.79,274/- and the default sentence was fixed as one month simple imprisonment. It is also ordered that on realisation of the fine amount, a sum of Rs.78,274/- shall be paid to the complainant 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 Crl. R.P.No.1829 of 2010 4 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 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 compensation 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 Crl. R.P.No.1829 of 2010 5 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 7.2.2006, for an amount of Rs.78,274/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.78,274/- which belonged to the complainant is with the revision petitioner for the last 4 years. Considering the above facts and legal position, I am of the view that, while maintaining the sentence of imprisonment and also the fine ordered by the lower appellate court, the revision petitioner can be granted 3 months time to pay the fine but with slight enhancement in 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 revision petitioner is directed to pay a fine of Rs.82,000/-, within 3 months from today and on realisation of the fine amount, a sum of Rs.81,000/- shall be paid to the complainant as compensation u/s.357(1)(b) of Cr.P.C and the Crl. R.P.No.1829 of 2010 6 remaining amount shall be paid to the State Exchequer. In case of default in paying the fine amount, the revision petitioner is directed to undergo simple imprisonment for 1 month. Accordingly, the revision petitioner is directed to appear before the trial court on 2.11.2010, 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/