IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 26TH MAY 2010 / 5TH JYAISHTA 1932 Crl.Rev.Pet.No. 1576 of 2010() ------------------------------ CRA.702/2007 of the COURT OF ADDL. SESSIONS JUDGE-II,, TRIVANDRUM ST.222/2005 of JFCM-VII, THIRUVANANTHAPURANM. .................... REVN. PETITIONERS: APPELLANT/ACCUSED -------------------------------------- R.DEVARAJAN, S/O.RASALAM, KUNNIL VEEDU, C LANE, HOUSE NO.38, KAIRALI NAGAR ASSOCIATION, MANNANTHALA, THIRUVANANTHAPURAM. BY ADV. SRI.BIJU BALAKRISHNAN RESPONDENTS: COMPLAINANT -------------------------- 1. SIVAPRAKASH.K., T.C.NO.41/81(1), S.K.P.BUILDINGS, MANACAUD, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY P.P. SMT. PUSHPALATHA M.K. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl. R.P.No.1576 of 2010 ---------------------------------------- Dated 26th Day of May, 2010 ORDER The challenge in this Crl.R.P is against the conviction and sentence imposed against the revision petitioner under section 138 of the Negotiable Instruments Act. 2. The case of the complainant is that the revision petitioner/accused borrowed an amount of Rs.65,000/- from the complainant and towards the discharge of the said debt, the accused issued a cheque dated 5.3.2005 for the above amount which when presented for encashment, dishonured for want of sufficient funds in the account maintained by the accused. With the above allegation, the complainant approached the court below by preferring a complaint upon which cognizance was taken and S.T.No.222 of 2005 was instituted. During the trial, the complainant himself was examined as PW1 and produced Exts.P1 to P6. No evidence was adduced from the side of the defence. The trial court after appreciating the evidence found that the CRL.R.P.1576/10 -:2:- complainant has established his case and accordingly, found that the accused is guilty and on conviction, sentenced him to undergo simple imprisonment for a period of three months and to pay a fine of Rs.65,000/-. It is also ordered that if the fine amount is realised, the same shall be given to the complainant under section 357(1)(b) of the Act, in default, to undergo simple imprisonment for a period of three months. Though the above conviction and sentence challenged by the revision petitioner by filing Crl.A.No.702/2007, by judgment dated 16.3.2010, the lower appellate court allowed the appeal only in part , confirming the conviction. The sentence was modified and reduced to imprisonment till the rising of the court. The fine amount and the default sentence fixed by the trial court were maintained. It is the above judgments of the courts below, conviction and sentence imposed against the revision petitioner, challenged in this revision Petition. 3. I have heard the learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. CRL.R.P.1576/10 -:3:- 4. On considering the arguments advanced by the learned counsel, and on perusing the judgments of the courts below, it can be seen that the revision petitioner/accused had admitted the transaction and according to him, he had issued blank signed cheques to the complainant besides some signed blank papers. When the execution and issuance of the cheque and the transaction are admitted, it is heavily on the accused to substantiate his defence by adducing evidence. No evidence was adduced from the side of the defence and no effective attempt was made to make out a case from the materials or evidence produced by the complainant. Therefore, the concurrent finding arrived on by the courts below on facts requires no interference as there is no merit in the Crl.R.P. 5. The learned counsel for the revision petitioner submitted that a breathing time my be granted to the revision petitioner to receive the sentence and to make the payment of fine amount. I am of the view that the said prayer can be considered favourably, provided, the fine amount be CRL.R.P.1576/10 -:4:- enhanced and fixed as Rs.70,000/- which will be sufficient to meet the ends of justice, especially in view of the Apex Court decision in Damodar S.Prbhu v. Sayed Babalal H (JT 2010 (4) SC 457) in which it is held that in case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. In the result, this Crl.R.P is disposed of confirming the conviction of the revision petitioner under section 138 of the NI Act as recorded by the trial court as well as the lower appellate court. The sentence of imprisonment fixed by the lower appellate court is maintained. But the sentence of fine is modified and enhanced to the tune of Rs.70,000/- which , on realisation, shall be paid to the complainant under section 357(1(b) Cr.P.C. If there is any failure on the part of the revision petitioner in paying the fine amount, he is directed to undergo simple imprisonment for a period of 7 months. Accordingly, the revision petitioner is directed to appear before the trial court on 31.8.2010 failing which the trial court is free to take coercive steps to secure the presence of the revision CRL.R.P.1576/10 -:5:- petitioner and to execute the sentence. Coercive steps, if any is pending, the same shall be deferred till 31.8.2010. V.K.MOHANAN, JUDGE kvm/- CRL.R.P.1576/10 -:6:- V.K.MOHANAN, J. O.P.No. JUDGMENT Dated:..