IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 6TH SEPTEMBER 2010 / 15TH BHADRA 1932 Crl.Rev.Pet.No. 2642 of 2010() ------------------------------ CRA.531/2007 of II ADDL.SESSIONS COURT, KOLLAM ST.152/2006 of JUDL. MAGISTRATE OF FIRST CLASS - III, KOLLAM .................... REVN. PETITIONER: APPELLANT/ACCUSED -------------------------------------- KABEER, HOUSE NO.75,UPASANA NAGAR, KOLLAM. BY ADV. SRI.K.S.MANU (PUNUKKONNOOR) SRI.P.SREEKUMAR RESPONDEN(S: RESPONDENTS/COMPLAINANT -------------------------------------- 1. MOHAMMED RASHEED, KAIRALI VEEDU, MEMANA, OCHIRA. 2. STATE OF KERALA, REP.BY THE DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. R2 BY P.P. SMT. SUMANGALA P.N. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------- Crl.R.P. No. 2642 of 2010 ---------------------------------------- Dated the 6th Day of September, 2010 ORDER The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the revision petitioner as he is aggrieved by the conviction and sentence imposed against him as per the impugned judgment. 2. The case of the complainant is that the accused borrowed an amount of Rs.80,000/- from the complainant and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 21.2.2005 which when presented for encashment, dishonoured as there was no sufficient fund in the account maintained by the accused and the revision petitioner/accused miserably failed to repay the cheque amount in spite of a formal notice caused to issue by him. With the said allegation, the complainant initially approached the Chief Judicial Magistrate court, Kollam by filing a complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted S.T.No.895/2005 and subsequently, the case is made over to the court of Judicial First Class Magistrate-III, Kollam wherein the case is renumbered as CRL.R.P.2642/10 :-2-: S.T.No.152/2006. During the course of trial, the complainant himself mounted to the box and adduced oral evidence as PW1. He has also produced Exts.P1 to P6 as documentary evidence. From the side of the defence, no evidence, either oral or documentary was produced. After evaluation of the evidence and the materials on record, the trial court has found that Ext.P1 cheque was issued towards the discharge of a legally enforceable debt that due to the complainant and accordingly, the trial court held that the complainant has succeeded in establishing the allegation against the revision petitioner-accused and found that the revision petitioner-accused is guilty. Consequently, the accused is convicted under section 138 of the N.I.Act. On such conviction, the trial court sentenced the revision petitioner-accused to undergo simple imprisonment for 3 months and ordered to pay a fine of Rs.80,000/-. It is also ordered that on realisation of the fine amount, the same shall be paid to the complainant as compensation under section 357(1) Cr.P.C. In case of default, the revision petitioner is directed to undergo simple imprisonment for a period of one month. Aggrieved by the above order of conviction CRL.R.P.2642/10 :-3-: and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 4.2.2010 in Crl.A.No.531/2007, the court of II Addl. Sessions Judge, Kollam, dismissed the appeal confirming the conviction but subject to certain modification with respect to the sentence. Accordingly, the sentence of imprisonment is reduced to imprisonment till the rising of the court and he is directed to pay a fine of Rs. 80,000/- and in default he is directed to undergo simple imprisonment for 15 days. It is also ordered that on reaslisation of the fine amount, the same shall be paid to the complainant. 3. Reiterating the contention taken by the defence during the trial and appellate stages, the learned counsel submitted that the complainant has not established the transaction, execution and issuance of the cheque and therefore, the courts below are absolutely wrong in convicting the revision petitioner-accused imposing sentence against him. The trial court as well as the lower appellate court has concurrently found in favour of the complainant and against the revision petitioner-accused. Though the revision petitioner is heard elaborately, nothing is brought out CRL.R.P.2642/10 :-4-: to take a different view by interfering with the concurrent findings of the courts below. All the contentions are based upon the facts and evidence on record which were elaborately considered by the courts below. Therefore, I find no reason to interfere with such concurrent finding of the courts below and accordingly, the conviction recorded by the courts below is confirmed. 4. As this court is not inclined to interfere with the order of conviction, the learned counsel submitted that a breathing time may be granted to the revision petitioner to receive the sentence and to pay the fine amount, which according to me deserves to be considered in favour of the revision petitioner, but subject to slight enhancement of the fine amount. In the result, this Crl.R.P is disposed of confirming the conviction of the revision petitioner recorded by the courts below for the offence under section 138 of the N.I.Act. Thus while confirming the sentence of imprisonment as modified and fixed by the appellate court and to pay fine, the fine amount is enhanced and the revision petitioner is directed to pay a fine of Rs.1,00,000/- (Rs.one lakh only) within three months from today and in case of CRL.R.P.2642/10 :-5-: any default, the revision petitioner is directed to undergo simple imprisonment for a period of 2 months. Accordingly, the revision petitioner is directed to appear before the trial court on 4.12.2010 to receive the sentence and to pay the fine amount, and in case of any default in remitting the fine amount on the above date, the trial court is free to take coercive steps for realisation of the fine amount. On realisation of the fine amount, a sum of Rs.97,500/- shall be paid to the complainant as compensation under section 357 (1)(b) Cr.P.C and the remaining amount shall be deposited into the State Exchequer. Coercive steps if any pending against the revision petitioner shall be deferred till 4.12.2010. This Crl.R.P is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- CRL.R.P.2642/10 :-6-: kvm/- O.P.No. JUDGMENT Dated:.. CRL.R.P.2642/10 :-7-: ........................................ The Apex Court, in its recent decision in Damodar S.Prabhu v. Sayed Babalal H (J.T.2010 (4) SC 457), has held that in a case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. In the light of the above settled legal position and in view of the facts and circumstances referred to above, I am of the view that the sentence of imprisonment imposed upon the revision petitioner can be reduced to simple imprisonment till the rising of the court and at the same time, he can be sentenced to pay a fine considering the fact that the amount covered by the cheque in question is with the revision petitioner right from 1.12.2004 and also the said amount can be ordered to be paid as compensation to the complaisant under section 357(1)(b) Cr.P.C. In the result, this Crl.R.P is disposed of confirming the conviction recorded by the trial court as well as the lower appellate court for the offence under section 138 of the N.I.Act . The substantive sentence of imprisonment imposed against the revision petitioner is set aside and he is sentenced to pay a fine of Rs.35,000/- and in default 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 under section 357 CRL.R.P.2642/10 :-8-: (1)(b) Cr.P.C. Accordingly, the revision petitioner is directed to appear before the trial court on 3rd September, 2010. If there is any default on the part of the revision petitioner in appearing before the trial court as directed above, the trial court is free to take coercive steps against the revision petitioner to secure his presence and to execute the sentence and for realisation of the amount. V.K.MOHANAN, JUDGE kvm/- O.P.No. CRL.R.P.2642/10 :-9-: JUDGMENT Dated:..