IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 12TH JULY 2010 / 21ST ASHADHA 1932 Crl.Rev.Pet.No. 2059 of 2010() ------------------------------ CRA.39/2009 of ADDL. DISTRICT &SESSIONS COURT (ADHOC) I, THRISSUR ST.1312/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT, WADAKKANCHERY .................... REVISION PETITIONER(S): APPELLANT/ACCUSED: -------------------------------------------------------------------------- JYOTHIRAJ, S/O.SREEDHARAN, KURIAKKODU HOUSE, POTTUR VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT. BY ADV. SRI.M.B.PRAJITH RESPONDENT(S): RESPONDENTS:COMPLAINANT --------------------------------------------------------------------------- 1. M.A.RAPHEL, MANHALIL HOUSE, ATHANI P.O., KILLANNOOR VILLAGE, THRISSUR (DT). 2. STATE REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. VENUGOPAL.M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ---------------------------------------- Crl.R.P. No. 2059 of 2010 ---------------------------------------- Dated the 12th Day of July 2010 ORDER The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the revision petitioner as he is aggrieved by the conviction and sentence imposed against him as per the impugned judgment. 2. The case of the complainant is that an amount of Rs.75,000/- was due to the complainant from the accused and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 10.12.2006 which when presented for encashment, dishonoured stating ' account closed' and the revision petitioner/accused miserably failed to repay the cheque amount in spite of a formal notice issued by him. With the said allegation, the complainant approached the Judicial First Class Magistrate, Wadakkanchery by filing a formal CRL.R.P. 2059/10 -:2:- complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted S.T.No.1312/2007. During the course of trial, the complainant himself mounted to the box and adduced oral evidence as PW1. He has also produced Exts.P1 to P5 as documentary evidence. From the side of the defence, no witness was examined and no defence evidence was produced. After evaluation of the evidence and the materials on record, the trial court has found that Ext.P1 cheque was issued towards the discharge of a legally enforceable debt that due to the complainant and accordingly, the trial court held that the complainant has succeeded in establishing the allegation against the revision petitioner-accused and found that the revision petitioner-accused is guilty. Consequently, the accused is convicted under section 138 of the N.I.Act. On such conviction, the trial court sentenced the revision petitioner-accused CRL.R.P. 2059/10 -:3:- to undergo simple imprisonment for 3 months and to pay a fine of Rs.75,000/-, in default, the revision petitioner is directed to undergo simple imprisonment for a further period of one month. It is also ordered that on realisation of the fine amount, the same shall be paid as compensation to the complainant under section 357(1) (b) Cr.P.C. 3. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 27.5.2010 in Crl.A.No.39/2009, the court of Addl.District & Sessions Judge, Fast Track No.1, Thrissrur, dismissed the appeal, confirming the conviction and sentence imposed against the revision petitioner by the trial court. It is the above judgments of the courts below challenged in this Crl.R.P. 4. Reiterating the contention taken by the defence during the trial and appellate stages, the CRL.R.P. 2059/10 -:4:- learned counsel submitted that the complainant has not established the transaction, execution and issuance of the cheque and therefore, the courts below are absolutely wrong in convicting the revision petitioner-accused imposing sentence against him. The trial court as well as the lower appellate court has concurrently found in favour of the complainant and against the revision petitioner-accused. Though the revision petitioner is heard elaborately, nothing is brought out to take a different view by interfering with the concurrent findings of the courts below. All the contentions are based upon the facts and evidence on record which were elaborately considered by the courts below. Therefore, I find no reason to interfere with such concurrent findings of the courts below and accordingly, the conviction recorded by the courts below is confirmed. 5. The learned counsel for the revision CRL.R.P. 2059/10 -:5:- petitioner submitted that the sentence awarded against the revision petitioner is exorbitant and also requested for a breathing time to pay the fine amount. 6. Having regard to the facts and circumstances involved in the case, I am of the view that such submission can be considered favourably, but subject to other circumstances involved in the case. 7. In the present case, the cheque in question is dated 10.12.2006 and thus as per the record and finding of the courts below which upheld by this court, a sum of Rs.75,000/- is with the revision petitioner for the last 4 years . The Apex Court, in its recent decision in Damodar S.Prabhu v. Sayed Babalal H (J.T.2010 (4) SC 457), has held that in a case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. Therefore considering the above facts and CRL.R.P. 2059/10 -:6:- circumstances involved in the case and the legal position, I am of the view that the sentence of imprisonment awarded against the revision petitioner can be reduced but at the same time the fine amount can be enhanced slightly. In the result, this Crl.R.P is disposed of confirming the conviction recorded by the court below for the offence under section 138 of the N.I.Act. Accordingly, the sentence of imprisonment awarded by the courts below is modified and the revision petitioner is sentenced to undergo simple imprisonment for one day, till the rising of the court, and he is further directed to pay a sum of Rs.90,000/- as compensation to the complainant under section 357(3) Cr.P.C within three months from today. If there is any default on the part of the revision in paying the compensation amount within the above time, the revision petitioner is directed to undergo CRL.R.P. 2059/10 -:7:- simple imprisonment for 3 months. Accordingly, the revision petitioner is directed to appear before the trial court on 11.10.2010 to receive the sentence and to pay compensation. The revision petitioner is free to pay the compensation either directly to the complainant or by remitting the same in the trial court whichever subject to the satisfaction of the trial court. This Crl.R.P is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- CRL.R.P. 2059/10 -:8:- kvm/- O.P.No. JUDGMENT Dated:..