IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 23RD SEPTEMBER 2010 / 1ST ASWINA 1932 Crl.Rev.Pet.No. 626 of 2009() ------------------------------------------ CRA.NO.74/2005 OF FIRST ADDL.SESSIONS COURT,THRISSUR CC.NO.648/2003 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KODUNGALLUR. .......... REVISION PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------------------------------------------- P.A.SHAMSUDHEEN, PANIKKASSERI KADAVIL, B.B.BACKERY, NO.22/8, HOSPITAL ROAD, OPP.CO-OPERATIVE BANK, SHIVAJI NAGAR, BANGALORE. BY ADV. SRI.SOORAJ T.ELANJICKAL RESPONDENT(S): IST RESPONDENT/COMPLAINANT & STATE: --------------------------------------------------------------------------------------------- 1. M.A.YUSUF, S/O.ALIYAR, MUNDAPPILLY THOTTATHIL HOUSE, P.O.THOTTUMUGHAM, ALUVA. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI. G. SREEKUMAR (CHELUR) R2 BY PUBLIC PROSECUTOR SMT. C.M. CHARISMA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.626 of 2009 ------------------------------- Dated this the 23rd day of September, 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/revision petitioner borrowed a sum of Rs.76,500/- from the complainant and towards the discharge of the debt due to the complainant, he issued two cheques dated 4.12.2002 for a sum of Rs.47,500/- and another one dated 14.3.2003 for an amount of Rs.29,000/-, which were when presented for encashment dishonoured, as there was no 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 2 Crl. R.P.No.626 of 2009 approached the Judl. First Class Magistrate Court-Kodungallur, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.648/03. During the trial of the case, the complainant himself was mounted to the box and gave evidence as PW1 and Exts.P1 to P13 were marked, from the side of the complainant. From the side of the defence, Dws.1 and 2 were examined and Ext.D1 was produced and marked. 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 Negotiable Instruments Act. On such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment till the rising of the court and also directed to pay a compensation of Rs.76,500/- 3 Crl. R.P.No.626 of 2009 with 12 % interest from 14.3.2003 till the date of realisation to the complainant and the default sentence was fixed as 6 months simple imprisonment. 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 31.5.2006 in Crl.A.74/05, the Court of Sessions Judge, Thrissur, allowed the appeal only in part and the only modification effected by the appellate court is that it reduced the rate of interest from 12 % to 6 %. It is the above 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. 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 cheques. But no case is made out to interfere with the concurrent findings of the trial court as well 4 Crl. R.P.No.626 of 2009 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. As this court is not inclined to interfere with the order of conviction recorded by the courts below, the counsel for the revision petitioner submitted that, some breathing time may be granted to pay the compensation amount and also submitted that the revision petitioner may be permitted to pay the compensation amount directly to the complainant. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered but subject to other relevant inputs 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 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, there are two cheques, which were 5 Crl. R.P.No.626 of 2009 dated 4.12.2002 for an amount of Rs.47,500/- and another cheque dated 14.3.2003 for an amount of Rs.29,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a total sum of Rs.76,500/-, which belonged to the complainant is with the revision petitioner for more than 7 years. So, while granting some time to pay the compensation amount, the same can be enhanced slightly. In the result, this revision petition is disposed of confirming the conviction and sentence against the revision petitioner u/s.138 of Negotiable Instruments Act as recorded by the courts below. Accordingly, the compensation amount is enhanced to the tune of Rs.1,00,000/-, which shall be paid to the complainant u/s.357(3) of Cr.P.C, within one week from today. The default sentence fixed by the courts below will attract only if the revision petitioner fails to make the payment of compensation amount, within the time stipulated by this court. Accordingly, the revision petitioner is directed to appear before the trial court on 30.9.2010, to receive the sentence of imprisonment and to pay 6 Crl. R.P.No.626 of 2009 the compensation amount, as fixed by this court. It is made clear that the revision petitioner is free to pay the compensation amount either directly to the complainant or by remitting the same in the trial court, which ever subject to the satisfaction of the learned Magistrate. 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 compensation 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. Execution of warrant if any, pending against the revision petitioner shall be deferred till 30.9.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. H/o. ami/