IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 21ST MAY 2010 / 31ST VAISAKHA 1932 Crl.Rev.Pet.No. 1572 of 2010() ------------------------------ CRA.66/2007 of ADDL. SESSIONS COURT, THRISSUR ST.209/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA .................... REVISION PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------------------------------------------- RAJAN K.C., SON OF CHAKKAN, KANAKKASSERI HOUSE, KURUTHIPALA, ANNALLUR P.O., PAZHUKKARA. BY ADVS. SRI.S.M.PREM, SMT.K.P.SANTHI, SRI.P.K.NIJOY, SMT.NISHA G.THARAMAL. RESPONDENT(S): RESPONDENTS/COMPLAINANT: --------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. A.A.GEORGE, SON OF ANTONY, ALUKKARAN HOUSE, NELLAI. R1 BY PUBLIC PROSECUTOR SMT. PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1572 of 2010 ------------------------------- Dated this the 21st day of May, 2010. O R D E R The courts below concurrently found that the revision petitioner is guilty of the offence punishable u/s.138 of Negotiable Instruments Act, wherein the allegation is that the revision petitioner borrowed a sum of Rs.50,000/- from the complainant and towards the discharge of the liability, the accused/revision petitioner issued a cheque for a sum of Rs.50,000/-, which when presented for encashment, dishonoured for want of sufficient fund, in the account maintained by him. 2. S.T.No.209/05 was instituted for the offence punishable u/s.138 of Negotiable Instruments Act, against the revision petitioner, upon the complaint preferred by the respondent herein. During the trial of the above case, the complainant adduced his evidence consists of oral testimony of PW1 and Exts.P1 to P6. No evidence either documentary or oral produced from the side of the defence. Both the trial court as well as the Crl. R.P.No.1572 of 2010 2 lower appellate court, has found that the complainant has succeeded in establishing his case and thereby the courts below found that the complainant is entitled to get presumptions u/s.139 of NI Act and accordingly further found that the accused has miserably failed to discharge his burden of rebutting the presumption. Thus the revision petitioner is found guilty and consequently he is convicted and sentenced. 3. The contention raised by the defence is to the effect that, he had purchased certain golden ornaments from the complainant, connected with the marriage of his sister and a cheque was given to the complainant as a security for the said transaction and it is the further case of the defence that he had repaid the entire amount, still then the cheque which entrusted with the complainant was not returned and by misusing the same, the present complaint is filed. Except the above bare averments and allegations, no evidence is adduced in terms of the legal requirement, so as to rebut the presumption that available in favour of the complainant. When the accused admits the execution and issuance of the cheque, it is heavily Crl. R.P.No.1572 of 2010 3 upon him to substantiate the plea of discharge of the liability. Therefore in the absence of any cogent and convincing evidence, that he had discharged the liability, it can not be said that no amount is due to the complainant from the accused and therefore it can not be said that he had discharged his burden of rebutting the presumption. Under the above factual and legal scenario, I find no reason to interfere with the order of conviction recorded by the trial court as well as the lower appellate court. Therefore, the conviction of the revision petitioner u/s.138 of Negotiable Instruments Act is confirmed. 4. The learned counsel for the revision petitioner submitted that, some breathing time may be granted to make the payment of compensation as directed by the court below and also a lenient view may be taken in the matter of sentence. 5. I have carefully considered the above submission of the learned counsel for the revision petitioner. The cheque in question dated 23.5.2003 is for an amount of Rs.50,000/-. Thus it can be seen that as per the records and evidence, the amount of Rs.50,000/- was within the revision petitioner, atleast from Crl. R.P.No.1572 of 2010 4 23.5.2003 onwards. It is also relevant to note that, the defence taken by the accused is to the effect that, he purchased the gold ornaments from the complainant connected with the marriage of his sister. 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. On an application of the above dictum in the present case, I am of the view that the sentence of imprisonment awarded by the courts below can be modified and reduced to till the raising of the court ; while the compensation fixed by the courts below can be enhanced to the tune of Rs.55,000/- and the default sentence can also be enhanced to three months simple imprisonment. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner u/s.138 of Negotiable Instruments Act, as held by the trial court as well as the lower appellate court. The sentence awarded against the petitioner is modified and reduced into, till the raising of the court and he is Crl. R.P.No.1572 of 2010 5 directed to pay a sum of Rs.55,000/- to the complainant as compensation u/s.357(3) of Cr.P.C. and on default in paying the above amount, the revision petitioner is directed to undergo simple imprisonment for a period of 3 months. Accordingly, the revision petitioner is directed to appear before the trial court on 30.8.2010, to receive the sentence and to make deposit of the fine amount. If there is any failure on the part of the revision petitioner, in appearing before the court below as directed above, the trial court is free to take coercive steps for procuring the presence of the revision petitioner and to execute the sentence. Execution of warrant if any pending against the revision petitioner, shall be referred till 30.8.2010. V.K.MOHANAN, Judge. ami/