IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 18TH AUGUST 2008 / 27TH SRAVANA 1930 Crl.Rev.Pet.No. 17 of 2003() {CRA.NO.179/2001 OF THE SESSIONS COURT, THODUPUZHA IN C.C.NO.88/1999 OF THE JUDL. MAGISTRATE OF FIRST CLASS COURT - I, IDUKKI } .................... REVN. PETITIONER: APPELLANT/ACCUSED: ----------------------------------------------------------------------- V.D. SURENDRAN, S/O. DAMODARAN, VELLARAMKUNNEL HOUSE, KANJIKUZHI KARA, KANKUKUZHI VILLAGE, IDUKKI DISTRICT. BY ADV. SRI.BIJI MATHEW SRI.S.BALAKRISHNAN CHETTIAR RESPONDENTS: DEFACTO COMPLAINANT & STATE: ----------------------------------------------------------------------------------- 1. A.J. JOSE, EDASSERIL HOUSE, MANIYARAMKUDI KARA, IDUKKI VILLAGE. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.SOJAN MICHEAL & SMT.JENCY MICHEAL R2 BY PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.GIRI, J. ------------------------- Crl.R.P.No.17 of 2003 B ------------------------- Dated this the 18th day of August, 2008. O R D E R The accused, in C.C.No.88/99 on the files of the Judicial Magistrate of the First Class, Idukki, who was convicted by the trial court for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 {for short 'the Act'} and sentenced to undergo simple imprisonment for a period of three months, with a further direction to pay a compensation of Rs.25,000/- to the complainant under Section 357 (3) of the Code of Criminal Procedure, is the petitioner in this Crl.R.P. Crl.A.No.179/01 filed by him before the Sessions Court, Thodupuzha against the conviction and sentence passed by the trial court was also dismissed and hence this revision. 2. The case of the complainant/respondent is that, in discharge of a debt due from the petitioner, Ext.P1 cheque dated 1.1.1999 was issued for an amount of Rs.25,000/-. The cheque was drawn on the account maintained by the Crl.R.P.No.17/2003 :: 2 :: accused with the Idukki-Kanjikuzhy Service Co- operative Bank, Keerithodu Branch. The cheque was dishonoured for insufficiency of funds. Notice for repayment was not heeded to and hence the complaint was filed. 3. It seems that the defence taken up by the accused, in the first instance, is essentially that no amount was due from him to the complainant; that he issued a cheque on account of the fact he is the President of the Bank at the material point of time. The court below considered the defence and refused to accept the same. It was found as a fact that there was inadequacy of funds in the account maintained by the accused and therefore, the ingredients of the offence under Section 138 of the Act were found to have been proved. 4. Having heard counsel on both sides and having perused the judgments of the courts below, I am of the view that no grounds have been made out to interfere with the concurrent findings of fact by the courts below. 5. The conviction under Section 138 of the Act does not warrant interference as such. Crl.R.P.No.17/2003 :: 3 :: 6. But, in the facts and circumstances of the case, in my view, the interest of justice would be met if the accused is asked to pay an amount, which is slightly higher than the cheque amount, to the complainant. The substantive term of imprisonment may not really be warranted, in such circumstances. 7. In the result, Crl.R.P. is allowed in part. While upholding the conviction of the appellant under Section 138 of the Act, the sentence imposed on the appellant is modified. The accused is sentenced to undergo imprisonment till the rising of the court and also to pay a compensation of Rs.30,000/- under Section 357 (3) of the Cr.P.C. The compensation amount shall be remitted within two months from today and on remittance of the compensation, the same shall be ordered to be disbursed to the complainant. If the accused fails to pay the compensation of Rs.30,000/-, in the manner aforementioned, he shall be liable to undergo simple imprisonment for a period of three months and the court below shall take steps to execute the same. Crl.R.P.No.17/2003 :: 4 :: 8. It is made clear that the court below shall see that the amount, if any, already remitted by the petitioner herein for effecting compliance with the order passed by this court on 7.1.2003 in this revision petition, as a condition for suspending the execution of the sentence imposed on the accused, shall be given credit to and it would be enough if the petitioner remits the balance amount to make up the amount of Rs.30,000/- required to be paid by him. 9. The accused shall appear before the trial court on 06.10.2008 for suffering the modified sentence of imprisonment imposed herein. The lower court records shall be transmitted to the court below forthwith. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. To Judge