IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 16TH SEPTEMBER 2010 / 25TH BHADRA 1932 Crl.Rev.Pet.No. 2660 of 2010() ------------------------------ CRA.187/2008 of II ADDL.SESSIONS COURT, KOLLAM CC.1002/2003 of JUDL.MAGISTRATE OF FIRST CLASS, SASTHAMCOTTA .................... REVISION PETITIONER(S): APPELLANT:ACCUSED: --------------------------------------------------------------------------- SURAJ, AGED 32 YEARS, S/O.SOMANADHAN, SURAJ BHAVANAM, EDACKADU MURI, PORUVAZHY VILLAGE. BY ADV. SRI.C.P.PEETHAMBARAN RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE: ----------------------------------------------------------------------------------------------- 1. SREEDHARAN NAIR, (DIED), KOLADUTHU VEEDU, PALLIMURI, PORUVAZHY VILLAGE, PIN - 688 508. 2. CHELLAMMA, W/O.SREEDHARAN NAIR, KOLADUTHU VEEDU, PALLIMURI,PORUVAZHY VILLAGE. POWER OF ATTORNEY HOLDER OF SREEDHARAN NAIR). PIN - 688 508. 3. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R3 BY PUBLIC PROSECUTOR SMT. SUMANGALA P.N. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2660 of 2010 ------------------------------- Dated this the 16th day of September, 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 borrowed a sum of Rs.35,000/- from the complainant and towards the discharge of the debt due to the complainant, he issued a cheque dated 18.7.2002 for a sum of Rs.35,000/-, 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-Sasthamcotta, by filing a formal complaint, upon 2 Crl. R.P.No.2660 of 2010 which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.1002/03. During the trial of the case, the complainant himself was mounted to the box and gave evidence as PW1 and Exts.P1 to P5 were marked, from the side of the complainant. 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 3 months and also directed to pay a compensation of Rs.35,000/- to the complainant u/s.357(3) of Cr.P.C. and the default sentence was fixed as 2 months simple imprisonment. 3 Crl. R.P.No.2660 of 2010 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 7.6.2010 in Crl.A.187/08, the Court of 2nd Addl. Sessions Judge, Kollam, dismissed the appeal, confirming the conviction but the sentence imposed against the revision petitioner is modified and while reducing the imprisonment to till the rising of the court, the revision petitioner is directed to pay a sum of Rs.35,000/- as fine instead of compensation and in default of payment, he is directed to undergo simple imprisonment for 10 days. It is also ordered that on realisation of the fine amount, the entire amount shall be released to the complainant. 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 4 Crl. R.P.No.2660 of 2010 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. As this court is not inclined to interfere with the order of conviction recorded by the courts below, the counsel for the revision petitioner submitted that, some breathing time may be granted to pay the fine amount. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered but subject to slight enhancement in the fine amount. 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 5 Crl. R.P.No.2660 of 2010 18.7.2002, for an amount of Rs.35,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.35,000/-, which belonged to the complainant is with the revision petitioner for the last 8 years. So, while granting some time to pay the fine amount, the same can be enhanced slightly. 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 as modified and fixed by the lower appellate court is confirmed and while maintaining the sentence to pay fine, the revision petitioner is directed to deposit a sum of Rs.52,000/- towards the fine amount, within 3 months from today and in default in paying the fine amount, the revision petitioner is directed to undergo simple imprisonment for a period of 2 months. Accordingly, the revision petitioner is directed to deposit the fine amount on or before 17.12.2010. In case any failure on the part of the revision petitioner in appearing 6 Crl. R.P.No.2660 of 2010 before the court below as directed above and in paying the fine 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. On realisation of the fine amount, a sum of Rs.50,000/- shall be paid to the complainant as compensation u/s.357(1)(b) of Cr.P.C. and the remaining amount shall be paid to the State Exchequer. The coercive steps if any, pending against the revision petitioner shall be deferred till 17.12.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/