IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 26TH OCTOBER 2010 / 4TH KARTHIKA 1932 Crl.Rev.Pet.No. 2683 of 2005() ------------------------------ CRA.287/2003 of ADDL.DISTRICT & SESSIONS COURT (ADHOC) FAST TRACK COURT II, PATHANAMTHITTA. CC.275/2002 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, PATHANAMTHITTA. .................... REVISION PETITIONER(S): APPELLANT:ACCUSED: --------------------------------------------------------------------------- M.K.MAHESWARAN NAIR, S/O.KESAVA KURUP, PATHIYATHUNDIYIL HOUSE, KEITHAKODY P.O., KOTTATHOOR, AYROOR. BY ADVS. SRI.SIBY MATHEW, SRI.PHILIP J.VETTICKATTU. RESPONDENT(S): RESPONDENTS/COMPLAINANTS: ----------------------------------------------------------------------------- 1. V.K.THOMAS, KOIKALETHU HOUSE, KOZHENCHERRY EAST P.O. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. V. TEKCHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K. MOHANAN, J ---------------------- Crl.R.P.No. 2683 OF 2005 ----------------------------------- Dated this the 26th day of October, 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 court below. 2. The case of the complainant is that to discharge the liability of a legally enforceable debt the accused/revision petitioner issued Ext.P1 cheque dated 27.12.2001 for an amount of Rs.75,000/-, which when presented for encashment, dishonoured due to the reason that there was no sufficient fund in the account maintained by the accused and the cheque amount was not repaid in spite of formal demand notice and thus the revision petitioner has committed the offence punishable under section 138 of Negotiable Instruments Act. With the said allegation, the complainant approached the Judicial First Class Magistrate Court-I, Pathanamthitta, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.275/2002. During the trial Crl.R.P. No.2683/05 2 of the case, complainant himself was examined as PW1 and Exts.P1 to P4 were produced. No evidence adduced either oral or documentary from the side of accused. 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 the debt due to the complainant. Thus accordingly, the trial court had held 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 accused/revision petitioner to undergo simple imprisonment for six months and also directed him to pay a compensation of Rs.75,000/- to the complainant u/s.357(3) of Cr.P.C. The default sentence is fixed as three months simple imprisonment. 3. Though an appeal was filed challenging the conviction and sentence imposed by trial court, by judgment dated 21.06.2005 in Criminal Appeal No.287/03, the Additional District and Sessions Judge (Adhoc) Fast Track Court -II, Pathanamthitta allowed the appeal only in part. Thus while confirming the conviction, sentence is modified as simple imprisonment for one month and also directed the revision petitioner to pay a Crl.R.P. No.2683/05 3 compensation of Rs.90,000/- to the complainant and the default sentence is fixed as three months simple imprisonment. The appellant was directed to appear before the trial court on 30.5.2005. It is the above order of conviction and sentence challenged in this revision petition. 4. I have head 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 cheque. The counsel for the revision petitioner further submitted that the courts below has committed wrong in convicting the revision petitioner. 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. As this court is not inclined to interfere with the order of conviction recorded by the courts below, learned counsel for the revision petitioner submitted that sentence of imprisonment Crl.R.P. No.2683/05 4 ordered by court below is unreasonable and exorbitant, which requires interference of this court. Learned counsel further submitted that breathing time may be granted to the revision petitioner to pay compensation amount, which submission according to me, can be considered favourably but subject to slight enhancement with respect to the compensation amount. 7. The cheque involved in this case is dated 27.12.2001 for an amount of Rs.75,000/- and as per the findings of court below, which is approved by this court, the said amount which belongs to the complainant, is with the revision petitioner for the last nine years. The apex court in the 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. Considering the above facts and settled legal position, I am of the view that sentence of imprisonment ordered by the court below can be modified and while granting some time, the compensation amount can be enhanced slightly. In the result, this revision petition is disposed of confirming the the conviction of the revision petitioner u/s 138 of Negotiable Instrument Act, as recorded by the courts below. Accordingly, the sentence of imprisonment ordered by the trial court and modified Crl.R.P. No.2683/05 5 by appellate court is reduced to one day simple imprisonment ie., till rising of court. The revision petitioner is further directed to pay a compensation of Rs.1,05,000/- to the complainant within one month from today and in case of any default in paying the amount within the above time, the revision petitioner is directed to undergo simple imprisonment for a period of three months. Accordingly the revision petitioner is directed to appear before the trial court on 26.11.2010 to serve the modified sentence and to pay the compensation amount fixed by this court. If there is any failure on the part of the revision petitioner in appearing and paying the amount, the trial court is free to take coercive steps to secure the presence of the petitioner and to execute the sentence and for realisation of the compensation amount. Coercive steps if any pending against revision petitioner shall be deferred till 26.11.2010. This criminal revision petition is disposed of accordingly. V.K. MOHANAN, JUDGE. Sou.