IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 10TH AUGUST 2010 / 19TH SRAVANA 1932 Crl.Rev.Pet.No. 2093 of 2010() ------------------------------------------- CRA.588/2008 of ADDL. DISTRICT & SESSIONS COURT (ADHOC)-II, KOTTAYAM ST.1485/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT, VAIKOM .................... REVN. PETITIONER/APPELLANT/ACCUSED --------------------------------------------------------------- T.C. BENNY, S/O. CHACKO, THURUTHELTHOOMPAPURATHU, KARIKODU P.O., VAIKOM TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.PHILIP T.VARGHESE, SRI.THOMAS T.VARGHESE, SMT.ACHU SUBHA ABRAHAM, SMT.AFSANA ASHRAF. RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE ----------------------------------------------------------------------------------------- 1. KOTTAYAM DISTRICT CO-OPERATIVE BANK LTD., PERUVA BRANCH, REPRESENTED BY ITS BRANCH MANAGER, P.S. SANKARAN NAMBOOTHIRI, MULLACKAL MANAYIL, VELIYANNOOR P.O., MEENACHIL TALUK. PIN-695 543. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.VENUGOPAL M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/08/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2093 of 2010 ------------------------------- Dated this the 10th day of August, 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, availed a loan for Rs.30,000/- on 2.7.2006 and towards the discharge of a debt due to the complainant, issued a cheque dated 17.7.2006 for a sum of Rs.34,270/-, 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, Vaikom, by filing a formal complaint, upon Crl. R.P.No.2093 of 2010 2 which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.1485/06. During the trial of the case, PW1, the complainant himself was examined from the side of the complainant and Exts.P1 to P7 were marked. 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.34,270/- to the complainant u/s.357 of Cr.P.C. and the default sentence is fixed as 1 day simple imprisonment ie., till rising of the court. 3. Though an appeal was filed, at the instance of the Crl. R.P.No.2093 of 2010 3 revision petitioner/ accused, by judgment dated 21.12.2009 in Crl.A.588/08, the Court of Addl. District & Sessions (Ad hoc-II), Kottayam, allowed the appeal only in part and the conviction of the revision petitioner is upheld and sentence imposed against the revision petitioner is reduced and the direction to pay compensation are set aside. Instead, the revision petitioner is sentenced to undergo imprisonment till rising of the court and to pay a fine of Rs.34,270/- and in default to undergo simple imprisonment for 2 months. It is also directed that on realisation of the fine amount, the entire amount shall be given to the complainant as compensation u/s.357(1)(b) of Cr.P.C. 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 Crl. R.P.No.2093 of 2010 4 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 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 deposit the fine 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 other 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 compensatory aspect of the remedy should be given priority over the punitive Crl. R.P.No.2093 of 2010 5 aspects. Admittedly, the liability arose out of a loan transaction, which taken place on 2.7.2006 and the cheque in question is dated 17.7.2006. Therefore while granting some time to pay the fine amount, the fine amount can be enhanced slightly. In the present case, the cheque in question is dated 17.7.2006, for an amount of Rs.34,270/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.34,270/- which belonged to the complainant is in the hands of the revision petitioner for the last 4 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. Accordingly, the revision petitioner is directed to pay a fine of Rs.36,000/-, within 3 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 2 months and on realisation of the fine amount, the entire amount shall be paid to the complainant as compensation u/s.357(1)(b) Crl. R.P.No.2093 of 2010 6 of Cr.P.C. Accordingly, the revision petitioner is directed to appear before the trial court on 10.11.2010 to receive the sentence of imprisonment and to pay the fine amount as directed by this court. 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. ami/