IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 16TH SEPTEMBER 2010 / 25TH BHADRA 1932 Crl.Rev.Pet.No. 2606 of 2010() ------------------------------ CRA.580/2007 of ADDL. SESSIONS COURT (ADHOC-2), THRISSUR ST.637/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT, WADAKKANCHERY .................... REVISION PETITIONER(S): APPELLANT:ACCUSED: --------------------------------------------------------------------------- CHACKO MATHEW, S/O.CHACKO, VATTAKUZHIYIL HOUSE, VELLARKULAM, PAZHAYANNUR P.O., THRISSUR DISTRICT. BY ADV. SRI.P.R.AJITHKUMAR RESPONDENT(S): RESPONDENTS:COMPLAINANT & STATE: ------------------------------------------------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. T.N.KRISHNANKUTTY, S/O.NARAYANAN, THANDANKAVIL HOUSE, PARUTHIPRA, VENOOR, TALAPPILLY TALUK. R1 BY PUBLIC PROSECUTOR SMT. SUMANGALA P.N. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2606 of 2010 ------------------------------- Dated this the 16th 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.42,000/- from the complainant and towards the discharge of the debt due to the complainant, he issued a cheque dated 2.11.2004 for a sum of Rs.42,000/-, 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 approached the Judl. First Class Magistrate Court-, Wadakkanchery, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable 2 Crl. R.P.No.2606 of 2010 Instruments Act and instituted S.T.No.637/05. During the trial of the case, the complainant himself was mounted to the box and gave evidence as PW1 and Exts.P1 to P6 were marked, from the side of the complainant. No evidence either oral or documentary 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 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 3 months and also directed to pay a compensation of Rs.42,000/- to the complainant u/s.357(3) of Cr.P.C. and the default sentence was fixed as 1 month simple imprisonment. 3. Though an appeal was filed, at the instance of the 3 Crl. R.P.No.2606 of 2010 revision petitioner/accused, by judgment dated 3.5.2010 in Crl.A.580/07, the Court of Addl. Sessions Judge Fast Track (Ad hoc)-II, Thrissur, allowed the appeal only in part and thus while confirming the conviction, the sentence is modified and reduced to one day simple imprisonment ie., till the rising of the court. The order to pay compensation amount is confirmed but the default sentence is enhanced to 2 months simple imprisonment. 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 cheque. 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 4 Crl. R.P.No.2606 of 2010 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. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered favourably but subject to slight enhancement in the compensation amount. 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 2.11.2004, for an amount of Rs.42,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.42,000/-, which belonged to the 5 Crl. R.P.No.2606 of 2010 complainant is with the revision petitioner for the last 6 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 against the revision petitioner u/s.138 of Negotiable Instruments Act as recorded by the courts below. Accordingly, while confirming the sentence of imprisonment as modified and fixed by the appellate court, the revision petitioner is directed to pay a compensation of Rs.52,000/- to the complainant u/s.357(3) of Cr.P.C., within 3 months from today and in default of payment of compensation within the above stipulated period, the revision petitioner is directed to undergo simple imprisonment for 2 months. If any amount, already deposited by the revision petitioner, he is entitled to get credited the same towards the total amount fixed by this court. Accordingly, the revision petitioner is directed to appear before the trial court on 17.12.2010, to receive the sentence of imprisonment and to pay the compensation amount, as fixed by this court. In case any failure on the part of 6 Crl. R.P.No.2606 of 2010 the revision petitioner in appearing before the court below as directed above and in paying the 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 17.12.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/