IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 27TH FEBRUARY 2009 / 8TH PHALGUNA 1930 Crl.Rev.Pet.No. 40 of 2002() ---------------------------- CRA.429/1998 of ADDL.SESSIONS COURT-III, KOZHIKODE CC.301/1997 of JUDL.MAGISTRATE OF FIRST CLASS-II, THAMARASSERY .................... REVN. PETITIONER(S): /APPELLANT/ACCUSED: ---------------------------------------- T.E.ABOOBACKER, EDAVALATHAZHATH HOUSE, ANAPPARA, KUNNAMANGALAM P.O., KOHIKODE DIST. BY ADV. MR. JACOB ABRAHAM MS.KOCHUMOL KODUVATH RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: --------------------------------------- 1. DR.V.N.GOPALAKRISHNAN, ASSISTANT SURGEON,SARIGA, MUKKAM, KOZHIKODE DIST. 2. THE STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR MR. JAI GOERGE FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/02/2009, THE COURT ON 27/02/2009 PASSED THE FOLLOWING: CRRP 40/02 ORDER ON C.M.P. 255 OF 2002 IN CRL.R.P. 40 OF 2002 DISMISSED. SD/- S.S SATHEESACHANDRAN, JUDGE 27.2.2009 OKB - TRUE COPY - P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. --------------------------------- Crl.R.P.No.40 of 2002 - A ----------------------------- Dated this the 27th day of February, 2009 O R D E R Revision petitioner is the accused in C.C.No.301/97 on the file of the Judicial First Class Magistrate -II, Thamarassery. He is prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act, in short the NI Act, on a complaint filed by the 1st respondent. The learned Magistrate after trial, finding him guilty of the offence, convicted the accused thereunder and sentenced him to undergo simple imprisonment for six months and to pay a fine of Rs.54,000/-. Against the conviction and sentence, the accused preferred Criminal Appeal No.429/98 before the Sessions Court, Kozhikode. The appeal was dismissed confirming the conviction and sentence. Against the concurrent finding upholding the conviction and sentence, this revision has been filed impeaching its correctness, legality and propriety. 2. I heard the learned counsel for the revision petitioner/accused and also the learned public prosecutor. Crl.R.P.No.40 of 2002 - A 2 3. In all fairness, the learned counsel for the revision petitioner/accused submitted that the conviction for the offence with which the revision petitioner/accused was indicted, is supported by reliable evidence and as such the challenge raised in the revision is confined only to the sentence imposed, which is stated to be excessive, harsh and unjustifiable. Imposition of simple imprisonment for six months and awarding a fine of Rs.54,000/- double the cheque amount involved in the case, according to the learned counsel is grossly disproportionate and too excessive. For the reason, normally, no guilty intention could be attributed to the maker of a cheque at the time the cheque was issued and, further, the dishonour of the instrument could be for reasons beyond his control the learned counsel urged for modification of the sentence setting aside the prison term imposed and limiting the punishment to a fine corresponding to the amount covered by the cheque. 4. Perusing the records of the case, as fairly conceded by the learned counsel for the revision petitioner/accused, the guilt of the accused for the offence with which he was indicted had Crl.R.P.No.40 of 2002 - A 3 been brought home by convincing and reliable evidence. Issue of the cheque for a sum of R.27,000/- was not disputed by the accused. But he had a version that the instrument was handed over as a security for the amount borrowed by DW1, a partner of his firm from the complainant. He had in fact examined that partner to substantiate that defence. However, when the complainant was in the witness box and examined as PW1, other than making a reference to DW1 he did not advance his defence and elicit any explanation from her. In fact, the defence version as indicated was projected only when he was examined under Section 313 of the Code of Criminal Procedure. The defence so canvassed was rightly and correctly repelled by the learned Magistrate. The dishonour of the cheque was on account of insufficiency of funds in the account maintained by the accused and all statutory formalities have been complied with for filing the complaint, have been established in the case both by oral and documentary evidence. Conviction of the accused for the offence under Section 138 of the NI Act in the proved circumstance is beyond the pale of challenge. Now, what remains to be Crl.R.P.No.40 of 2002 - A 4 considered is whether there is any merit in the plea of the learned counsel for the revision petitioner for modification of the sentence. 5. Incarceration of an offender under Section 138 of the NI Act, and his conviction, for a prison term, is not the normal rule as the dishonour of a cheque issued by him most probably be on account of his financial difficulties. In the absence of exceptional circumstances warranting imposition of a prison term as part of the sentence, I am of the view that awarding of adequate compensation with default term would be more appropriate to meet the ends of justice. Sentence imposed against the revision petitioner/accused directing him to undergo simple imprisonment for six months and to pay a fine of Rs.54,000/- is modified as indicated hereunder. Revision petitioner/accused is directed to undergo imprisonment till rising of the court and to pay compensation of Rs.54,000/- (Rupees Fifty Four Thousand only) with default term of simple imprisonment for three months for the offence under Section 138 of the Negotiable Instruments Act. Compensation as ordered Crl.R.P.No.40 of 2002 - A 5 above shall be paid by the revision petitioner/accused within two months, and if realised, the amount shall be released to the complainant. The revision petitioner/accused shall appear and his sureties shall produce him on 4.5.2009 before the Judicial First Class Magistrate, Thamarassery, who shall execute the sentence as directed. The revision petition is partly allowed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-