IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 8TH OCTOBER 2010 / 16TH ASWINA 1932 Crl.Rev.Pet.No. 2861 of 2010() ------------------------------------ CRA.141/2009 of SESSIONS COURT, KASARAGOD STC.753/2007 of JUDL.MAGISTRATE OF FIRST CLASS-I, HOSDRUG .................... REVN. PETITIONER(S): APPELLANT/ACCUSED NO.1 ------------------------------------------------------------ C.V.KRISHNAN, AGED 55 YEARS, S/O.KOMAN, TREASURER OF PUDUKAI VAININGAT SREE VAIRAJATHAN EASHWARA KSHETHRA COMMITTEE, PUTHUKAI VILLAGE. BY ADVS. SMT.P.K.PRIYA SRI.K.V.SREEVINAYAKAN RESPONDENT(S)/RESPONDENT/COMPLAINANT & STATE ------------------------------------------------------------------ 1. V.CHANDRAN, AGED 44 YEARS, S/O.POKKAN, MAVUNGAL, P.O.ANANDASRAM, HOSDURG TALUK, AJANUR VILLAGE. 2. THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI.V.TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SVS/ V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2861 of 2010 ------------------------------------------------- Dated this the 8th day of October, 2010. O R D E R The accused in a prosecution for the offence under section138 of the Negotiable Instruments Act,1881 (for short ‘the N.I Act’) approached this Court by preferring the above revision petition challenging his conviction and sentence, imposed as per judgments of the trial court as well as the lower appellate court. 2. The case of the Ist respondent/complainant against the accused/revision petitioner is that, the complainant was a member of a chitty conducted by both of them, towards the discharge of the liability due to the complainant, the accused issued a cheque dated 29.12.2006 for a sum of Rs.6,00,000/-(Rupees Six lakhs only), which when presented for encashment, was dishonoured for want of sufficient fund in the account maintained by the accused/revision petitioner and the Crl. R.P. No.2861/2010 2 petitioner failed to pay the cheque amount, even though he was requested for the same by issuing a statutory notice. The accused issued the cheque from the joint account maintained by both the parties. With the said allegation, the complainant approached the Court of Judicial Magistrate of First Class, Hosdurg whereupon S.T.No.753/2007 was instituted taking cognizance for the offence u/s.138 of Negotiable Instruments Act. During the trial of the above case, the first respondent/complainant adduced his evidence consisting of the documentary evidence such as Exts.P1 to P5 and the oral evidence of himself as PW1. No evidence 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 Crl. R.P. No.2861/2010 3 petitioner and consequently, found that the accused is guilty and thus he is convicted u/s.138 of Negotiable Instruments Act. On such conviction, after the case against the 2nd accused is split up and re-filed separately, the revision petitioner herein is sentenced to undergo simple imprisonment for a period of three months and also directed him to pay a sum of Rs.6,00,000/- as compensation u/s.357(3) of Cr.P.C and the default sentence is fixed as three months simple imprisonment. 3. Though an appeal was filed against the above conviction and sentence, by the revision petitioner/ accused, as per judgment dated 22.06.2010 in Crl.A.No.141/2009, the Court of Sessions, Kasargod, allowed the appeal only in part and thus, while confirming the conviction, the compensation and default sentence, the substantial sentence is reduced to 10 days simple imprisonment. It is the above conviction, sentence and direction to pay the compensation, Crl. R.P. No.2861/2010 4 challenged in this Crl.R.P. 4. I have heard learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. 5. Reiterating the stand taken by the defence during the trial as well as the appellate state, the learned counsel for the revision petitioner submitted that the complainant has not established the transaction, execution and issuance of the cheque. The above submission is purely on the basis of the facts, evidence and materials on record which are already considered in detail by the trial court as well as the lower appellate court. The petitioner miserably failed to make out a case so as to interfere with such concurrent findings arrived on by the courts below. Therefore, the conviction recorded by the courts below is only required to be approved. I do so. 6. As this court is not inclined to interfere with the order of conviction, learned counsel for the revision Crl. R.P. No.2861/2010 5 petitioner submitted that a breathing time may be granted to the revision petitioner to pay the compensation. Leaned counsel for the revision petitioner also submitted that the sentence imposed by the courts below is exorbitant. 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 amount of compensation, considering the fact that the cheque in question dated 29.12.2006 for an amount of Rs.6,00,000/- and the said amount is with the revision petitioner for the last three years and also considering the Apex court 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 result, this revision petition is disposed of confirming the conviction of the revision petitioner Crl. R.P. No.2861/2010 6 u/s.138 of Negotiable Instruments Act as recorded by the courts below. Accordingly, the sentence of imprisonment revised and re-fixed by the appellate court is reduced to one day simple imprisonment that till the rising of the court. Further, the revision petitioner is directed to pay a sum of Rs.1,36,000/- (Rupees One lakh thirty six thousand only), to the complainant as compensation u/s.357(3) of Cr.P.C within three months from today and in case of any default in paying the amount, the revision petitioner is directed to undergo simple imprisonment for six months and on realisation of the compensation amount, the entire amount shall be paid to the complainant under Section 357(3) of the Cr.P.C. Accordingly, the revision petitioner/accused is directed to appear before the trial court on 10.01.2011 to receive the sentence and to deposit the compensation amount. In case any failure on the part of the revision petitioner in appearing before the trial court and making the deposit of Crl. R.P. No.2861/2010 7 compensation amount on the above date, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence and for realisation of the compensation amount. Coercive steps, if any, pending against the revision petitioner shall be deferred till 10.01.2011. Criminal revision petition is disposed of accordingly. Sd/- V.K.MOHANAN, Judge. ss/- The words and figures “Rs.1,36,000/-(Rupees One lakh thirty six thousand only)” occurring in the 6th and 7th lines of page No.6 of the order dated 08/10/2010 in Crl.R.P.2861/2010 are corrected and substituted as “` 6,36,000/- (Rupees Six lakhs thirty six thousand only)” as per order dated 06/12/2010 in Crl. M.A.11108/2010 in Crl.R.P.2861/2010. Sd/- Registrar(Judicial)