IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 9TH NOVEMBER 2010 / 18TH KARTHIKA 1932 Crl.Rev.Pet.No. 3283 of 2010 () ------------------------------ (CRA.253/2009 of II ADDL. SESSIONS COURT, THIRUVANANTHAPURAM) ( ST.629/2006 of JUDL. FIRST CLASS MAGISTRATE COURT-VII, THIRUVANANTHAPURAM) .................... REVN. PETITIONER/APPELLANT/ACCUSED: ---------------------------------------------------------------- V.VELAYUDHAN, S/O.LATE S.V.PANDIT, T.C.11/264,INGLEDENE, KOWDIAT-PO THIRUVANANTHAPURAM-3 BY ADV. SMT.M.HEMALATHA RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: ---------------------------------------------------------------------------------- 1. PURUSHOTHAMAN, VYSALAM, CHEMPAKASSERI NAGAR,KESAVADASAPURAM, THIRUVANANTHAPURAM-695004 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM BY PUBLIC PROSECUTOR, SRI.V.TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.3283 of 2010 ------------------------------- Dated this the 9th day of November, 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.8,29,500/- and towards the discharge of the said liability, the accused issued a cheque dated 30.4.2005 for a sum of Rs.8,29,500/-, which 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 initially approached the Judl. First Class Magistrate Court-II, Trivandrum, by filing a formal complaint, upon which 2 Crl. R.P.No.3283 of 2010 cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.1558/04 and subsequently the case was transferred to the Judicial First Class Magistrate-VIII, Trivandrum, wherein the case is renumbered as S.T.No.629/06. During the trial of the case, PW1, the complainant himself was examined from the side of the complainant and Exts.P1 to P9 were marked. From the side of the defence, though no witness was examined, 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 for 1 year and also directed the revision petitioner to pay a fine of Rs.8,29,500/-, 3 Crl. R.P.No.3283 of 2010 failing which the revision petitioner was directed to undergo simple imprisonment for 2 months. It is also ordered that in case the fine amount is realised, the same shall be given to the complainant as compensation u/s.357(1)(b) of Cr.P.C. 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 25.9.2010 in Crl.A.253/09, the Court of Addl. Sessions Judge-II, Trivandrum, allowed the appeal only in part and while confirming the conviction, the sentence imposed against the accused by the trial court is modified and reduced to one day simple imprisonment ie., till the rising of the court. The appellate court directed the revision petitioner to pay a compensation of Rs.8,50,000/- to the complainant u/s.357(3) of Cr.P.C. instead of fine and in default he is directed to suffer simple imprisonment for one year. Accordingly, the revision petitioner was directed to appear before the trial court on 10.11.2010 to serve the modified sentence. It is the above conviction and sentence challenged in this revision petition. 4 Crl. R.P.No.3283 of 2010 4. I have heard the learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. 5. As this court is not inclined to interfere with the conviction recorded by the courts below, the learned counsel for the revision petitioner submitted that, the revision petitioner is now at the age of 77 years and he is a sick person also. It is the further submission of the learned counsel that, the revision petitioner seeks some time to pay the compensation amount, since huge amounts are yet to be reached from various sources, including by way of compensation connected with land acquisition proceedings. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered positively but subject to other relevant facts and circumstances 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 5 Crl. R.P.No.3283 of 2010 compensatory aspect of the remedy should be given priority over the punitive aspects. In the present case, the cheque in question is dated 30.4.2005, that too for an amount of Rs.8,29,500/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.8,29,500/- which belonged to the complainant is with the revision petitioner for the last 5 years. Considering the above facts and settled legal position and the age of the revision petitioner, I am of the view that the sentence of imprisonment ordered against the revision petitioner can be set aside and instead of that, the sentence can be confined to fine only. Accordingly, some time can be granted to the revision petitioner to pay the fine amount and the amount can be enhanced slightly considering the fact that the liability arose out of the cheque amount has not been discharged for the last 6 years. 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 courts below. 6 Crl. R.P.No.3283 of 2010 Accordingly, in suppression of the sentence to undergo imprisonment, the sentence is confined to fine only and accordingly the revision petitioner is sentenced to pay a fine of Rs.11,97,599/-, which he shall deposited in the court below within 6 months from today and in case of default in paying the fine amount within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for 6 months. Accordingly, the revision petitioner is directed to appear before the trial court on 9.5.2011. In case, any failure on the part of the revision petitioner in paying the 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. On realisation of the fine amount, a sum of Rs.11,00,000/- shall be paid to the complainant as compensation u/s.357(1)(b) of Cr.P.C. and the remaining amount shall be paid to the State Exchequer. The execution of warrant if any, pending against the revision petitioner shall be deferred till 9.5.2011. 7 Crl. R.P.No.3283 of 2010 Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/