IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 27TH JULY 2010 / 5TH SRAVANA 1932 Crl.Rev.Pet.No. 2038 of 2010() ------------------------------ CRA.145/2008 of SESSIONS COURT, KASARAGOD CC.2/2008 of JUDL. MAGISTRATE OF FIRST CLASS-II (ADDL.MUNSIFF) KASARAGOD. .................... REVISION PETITIONER/APPELLANT/ACCUSED: ----------------------------------------------------------------------- C.A.RASHEED, AGED 40 YEARS, S/O.C.B.ABDULLA, C.B.HOUSE, KELUGUDDE, P.O.R.D.NAGAR, KASARGOD. BY ADV. SRI.S.JIJI RESPONDENT(S): RESPONDENTS:COMPLAINANT & STATE: ----------------------------------------------------------------------------------------- 1. NAJEEBUDDEEN.M.H, AGED 30 YEARS, S/O.A.H.MAHMOOD HAJI, SHERIEF MANZIL, THALANGARA WEST HILL, THALANGARA P.O, KASARGOD DIST. AND TALUK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADVS. SRI.T.B.SHAJIMON, SMT.GOVINDU P.RENUKADEVI. R2 BY PUBLIC PROSECUTOR SRI. C.M. NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2038 of 2010 ------------------------------- Dated this the 27th day of July, 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, towards the discharge of a debt due to the complainant, issued a cheque dated 3.4.2007 for a sum of Rs.5,00,000/-, 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 Judicial First Class Magistrate Court-II (Addl. Munsiff), Kasaragod, by filing a formal complaint, Crl. R.P.No.2038 of 2010 2 upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.2/08. During the trial of the case, PW1 the complainant himself, was examined from the side of the complainant and Exts.P1 to P6 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 a period of 6 months and to pay a compensation of Rs.5,00,000/- to the complainant u/s.357 (3) of Cr.P.C. and the default sentence is fixed as 3 months simple imprisonment. Crl. R.P.No.2038 of 2010 3 3. Though an appeal is filed at the instance of the revision petitioner/accused, by judgment dated 28.1.2010 in Crl.A.145/08, the Court of Sessions, Kasaragod, allowed the appeal in part, confirming the conviction of the revision petitioner u/s.138 of Negotiable Instruments Act but the sentence is modified and reduced to 10 days simple imprisonment and the compensation amount was confirmed but the default sentence was fixed as 6 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 Crl. R.P.No.2038 of 2010 4 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. The counsel for the revision petitioner submitted that, some breathing time may be granted to him to pay the compensation amount and also submitted that as the imprisonment ordered is unreasonable, the same may be reduced. I am of the view that the said submission can be considered favourably but subject to other relevant materials 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 aspects. In the present case, the cheque in question is dated 3.4.2007, for an amount of Rs.5,00,000/-. Thus as per the records and the findings of the courts below, Crl. R.P.No.2038 of 2010 5 which approved by this court, a sum of Rs.5,00,000/-, which belonged to the complainant, is in the hands of the revision petitioner for the last 3 years. Considering the above facts and legal position, I am of the view that, the sentence of imprisonment can be reduced and at the same time, the compensation amount fixed by the courts below can be slightly enhanced and the revision petitioner can be granted 3 months time to pay the compensation amount. 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 sentence of imprisonment ordered by the lower appellate court is modified and reduced to one day simple imprisonment ie., till the rising of the court and the revision petitioner is directed to pay compensation of Rs.5,15,000/- to the complainant, within 3 months from today. In case, any default in paying the compensation amount within the stipulated period, the revision petitioner is directed to undergo simple Crl. R.P.No.2038 of 2010 6 imprisonment for a period of 6 months. Accordingly, the revision petitioner is directed to appear before the trial court on 27.10.2010 to receive the sentence and to pay the compensation amount. In case any failure on the part of 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 him. If, any coercive steps is pending against the revision petitioner, the same shall be deferred till 27.10.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/