IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 29TH SEPTEMBER 2010 / 7TH ASWINA 1932 Crl.Rev.Pet.No. 2843 of 2010() ------------------------------ CRA.731/2009 of ADDL.DISTRICT & SESSIONS COURT (ADHOC III)N.PARAVUR CC.726/2006 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA .................... PETITIONER/APPELLANT/ACCUSED: ------------------------------------------------------- HASSAN, AGED 42, VADAKKEDATHU HOUSE, KUZHIVELIPPADY, ALUVA TALUK. BY ADVS. SRI.C.D.JOHNY, SRI.P.SHAIJAN JOSEPH. RESPONDENT(S): RESPONDENTS:COMPLAINANT & STATE: ----------------------------------------------------------------------------------------- 1. P.T.PRADEEP, PALANCHERY HOUSE, EDATHALA MALEPPADY, ALUVA-682 121. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. V. TEKCHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------------------ Crl.R.P. No. 2843 of 2010 ---------------------------------------- Dated the 29th Day of September, 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 the accused borrowed an amount of Rs.25,000/- from the complainant and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 20.1.2006 which when presented for encashment, dishonoured as there was no sufficient fund in the account maintained by the accused and the revision petitioner/accused miserably failed to repay the cheque amount in spite of a formal notice caused to issue by him. With the said allegation, the complainant approached the Judicial First Class Magistrate-I, Aluva by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted C.C.No.726/2006. 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 evidence, either oral or CRL.R.P 2843/10 -:2:- documentary 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 to undergo simple imprisonment for a period of three months and to pay compensation of Rs.25,000/- to the complainant under section 357(3) Cr.P.C. The default sentence is fixed as simple imprisonment for a period of 60 days. 3. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 3.5.2010 in Crl.A.No.731/2009, the court of Addl. District & Sessions Judge, (Adhoc-III), North Paravur dismissed the appeal confirming the conviction and sentence. It is the above judgments of the trial court as well as the lower appellate court challenged in this Crl.R.P. 4. Reiterating the contention taken by the defence during CRL.R.P 2843/10 -:3:- the trial and appellate stages, the 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 to interfere 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 finding of the courts below and accordingly, the conviction recorded by the courts below is confirmed. 5. As this court is not inclined to interfere with the conviction, the counsel submitted that the sentence of imprisonment ordered by the courts below is unreasonable and exorbitant and the same may be interfered with and also submitted that a breathing time may be grated to the revision petitioner to pay the amount. 6. The Apex Court, in its recent decision in Damodar CRL.R.P 2843/10 -:4:- 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. In the light of the above legal position, I am of the view that the sentence of imprisonment ordered by the courts below can be modified and the revision petitioner can be granted one month time from today to pay the compensation amount. Accordingly, while confirming the conviction of the revision petitioner under section 138 of the NI Act as recorded by the courts below, in modification of the sentence of imprisonment ordered by the trial court and confirmed by the appellate court, the sentence of imprisonment is reduced to imprisonment for one day, i.e., till the rising of the court and while maintaining the direction to pay compensation to the complainant under section 357(3) Cr.P.C , one month time is granted to the revision petitioner to pay the compensation amount. The default sentence fixed by the courts below will attract only in case of default on the part of the revision petitioner in paying the amount within the extended time. Accordingly the revision petitioner is directed to appear before the trial court on 29th November, 2010 to receive the sentence and to pay the compensation amount. If there is any default on the part of CRL.R.P 2843/10 -:5:- the revision petitioner in appearing before the trial court as directed above, the trial court is free to take coercive steps against the revision petitioner to secure his presence and to execute the sentence and for realisation of the amount. Coercive steps, if any, pending shall be deferred till 29.11.2010 This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/-