IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 11TH AUGUST 2010 / 20TH SRAVANA 1932 Crl.Rev.Pet.No. 2329 of 2010() ------------------------------ CRA.175/2004 of ADDL.DISTRICT & SESSIONS COURT (ADHOC)-II, KOTTAYAM CC.23/2002 of JUDL.MAGISTRATE OF FIRST CLASS-II, KANJIRAPPALLY .................... REVISION PETITIONER(S): APPELLANT:ACCUSED: --------------------------------------------------------------------------- ABDUL K.NAZAR,BLOCK.NO.397,KALLAR P.O., THOOKKUPALAM,IDUKKI DIST. BY ADV. SRI.LALJI P.THOMAS RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE: ----------------------------------------------------------------------------------------- 1. ABDUL AZEEZ, S/O.MOHAMMED KUNJU YOUSUF,NEAR PAVANA HOSTEL, PONKUNNAM P.O.,REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, KHALID P.H.,S/O.MUHAMMED KANSU, PUTHUPARAMBIL, (BLOCK NO.400)KALLAR P.O., IDUKKI DISTRICT - 691 001. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH CURT OF KERALA,ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. VENUGOPAL.M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2329 of 2010 ------------------------------- Dated this the 11th 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, towards the discharge of a debt due to the complainant, issued a cheque dated 15.11.2001 for a sum of Rs.40,000/-, 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-II, Kanjirappally, by filing a formal complaint, upon which Crl. R.P.No.2329 of 2010 2 cognizance was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.23/02. During the trial of the case, PW1, the complainant himself was examined from the side of the complainant and Exts.P1 to P10 series 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 to pay a sum of Rs.40,000/- to the complainant as compensation u/s.357(3) of Cr.P.C. and the default sentence is fixed as 20 days simple imprisonment. 3. On appeal, at the instance of the revision petitioner/ accused, by judgment dated 4.3.2009 in Crl.A.175/04, the Court of Crl. R.P.No.2329 of 2010 3 Sessions Judge, Kottayam, dismissed the appeal, confirming the conviction and sentence of the revision petitioner u/s.138 of Negotiable Instruments Act. 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 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 deposit the fine amount. I am of the view that the said submission can be considered but Crl. R.P.No.2329 of 2010 4 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 15.11.2001, for an amount of Rs.40,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.40,000/- which belonged to the complainant is in the hands of the revision petitioner for the last 9 years. Considering the above facts and legal position, I am of the view that, while reducing the sentence of imprisonment, the compensation amount can be enhanced slightly 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 Crl. R.P.No.2329 of 2010 5 revision petitioner is directed to undergo simple imprisonment till rising of the court and he is also directed to pay sum of Rs.45,000/- as compensation to the complainant u/s.357(3) of Cr.P.C., within 3 months from today and in case of default in paying the fine amount, the revision petitioner is directed to undergo simple imprisonment for 2 months. Accordingly, the revision petitioner is directed to appear before the trial court on 11.11.2010 to receive the sentence of imprisonment and to pay the compensation 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 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. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/