IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 19TH AUGUST 2010 / 28TH SRAVANA 1932 Crl.Rev.Pet.No. 2531 of 2010() ------------------------------ CRA.634/2008 of I ADDL. SESSIONS COURT, PALAKKAD ST.527/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT-III, PALAKKAD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- DR.K.ASOKAN, S/O.T.P.APPUKUTTAN, D/39, NGO COLONY, KALLEPPULLY, PALAKKAD DISTRICT. BY ADV. SRI.T.K.SANDEEP RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. ABDUL AZIZ, S/O.MOHAMMED HANEEFA, F DALE, MHS ROAD, PUDUNAGARAM, PALAKKAD DISTRICT-678 503. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. PUBLIC PROSECUTOR SRI.VENUGOPAL.M.R THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN,J --------------------- Crl.R.P.No.2531 of 2010 ------------------------------------ Dated this the 19th day of August,2010 O R D E R The accused in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') approached this Court by preferring the above revision petition challenging his conviction and sentence, imposed as per judgments of the trial court as well as the lower appellate court. 2. The case of the respondent/complainant against the accused/revision petitioner is that towards the discharge of a debt due to the complainant, the accused issued a cheque dated 08.12.2006 for a sum of Rs.1,00,000/- which, when presented for encashment, was dishonoured for want of sufficient fund in the account maintained by the revision petitioner and the petitioner failed to pay the cheque amount, even though he was requested for the same by issuing a statutory notice. With the said allegation, the complainant approached the Judicial First Class Magistrate Court-III, Palakkad whereupon S.T.No.527/2007 was instituted taking cognizance for the offence under Section 138 of the N.I.Act. During the trial of the above Crl.R.P.No.2531 of 2010 2 case, the respondent/complainant adduced his evidence consisting of the documentary evidence such as Exts.P1 to P3 and the oral evidence of himself as PW1. No evidence either oral or documentary was 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 courts held that, the complainant has established the case against the revision petitioner/accused and consequently, found that the accused is guilty and thus, he is convicted under Section 138 of the N.I.Act. Accordingly, the accused/revision petitioner is sentenced to undergo simple imprisonment for one month and to pay fine of Rs.1,00,000/-. The default sentence is fixed as 1 month simple imprisonment. 3. Though an appeal was filed against the above conviction and sentence, by the revision petitioner/accused, as per judgment dated 28.6.2010 in Crl.Appeal No.634/2008, the Court of Addl. Sessions Judge-I, Palakkad dismissed the appeal, confirming the conviction and sentence. It is the above conviction Crl.R.P.No.2531 of 2010 3 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 defence during the trial as well as the appellate stage, the learned counsel for the revision petitioner submitted that the complainant has not established the transaction, execution and issuance of the cheque. The above submission is purely on the basis of the facts, evidence and materials on record which are already considered in detail by the trial court as well as the lower appellate court. The petitioner miserably failed to make out a case so as to interfere with such concurrent findings arrived on by the courts below. Therefore, the conviction recorded by the courts below is only required to be approved. I do so. 6. The learned counsel for the revision petitioner submitted that a breathing time may be granted to the revision petitioner to receive the sentence and to pay the amount ordered by the courts below. Having regard to the facts and circumstances involved in the case, I am of the view that the said Crl.R.P.No.2531 of 2010 4 submission can be considered and three months time can be granted to the revision petitioner. 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, the cheque in question is dated 08.12.2006, for an amount of Rs.1,00,000/-. Thus as per the records and the findings of the courts below, which approved by this Court, a sum of Rs.1,00,000/-, which belonged to the complainant, is in the hands of the revision petitioner for the last 4 years. Considering the above facts and legal position, I am of the view that, the sentence of imprisonment ordered by court below can be modified but while maintaining the sentence to pay fine, ordered by the lower appellate court, the revision petitioner can be permitted to deposit the fine amount, with slight enhancement, within three months from today. 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 trial court. Crl.R.P.No.2531 of 2010 5 Accordingly the revision petitioner is sentenced to undergo simple imprisonment for one day, i.e., till the rising of the court and the revision petitioner is further directed to pay a fine of Rs.1,15,000/- within 3 months from today failing which he is directed to will undergo simple imprisonment for three months imprisonment. On realisation of the fine amount, the entire amount shall be paid to the complainant as compensation under Section 357(1)(b) of Cr.P.C. Accordingly, the revision petitioner is directed to appear before the trial court on 16.11.2010 to receive the sentence and to pay the fine amount. 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. pm