IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 3RD JUNE 2010 / 13TH JYAISTHA 1932 Crl.Rev.Pet.No. 1712 of 2010() ------------------------------ CRA.73/2007 of SESSIONS COURT, KALPETTA ST.224/2006 of JUDICIAL MAGISTRATE OF FIRST CLASS - II, KALPETTA .................... REVN. PETITIONER: APPELLANT/ACCUSED -------------------------------------- P.K.RAJAN, AGED 42 YEARS, S/O.KRISHNANKUTTY, RESIDING AT PULPARAMBIL HOUSE, AMARAKUNI P.O., PULPALLY, SULTHAN BATHERY TALUK. BY ADV. SRI.A.V.JAMES SRI.P.DALBI EMMANUEL RESPONDENTS: RESPONDENTS/COMPLAINANT -------------------------------------- 1. THE STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. T.M.MATHEW, AGED 50 YEARS, S/O.MANI, RESIDING AT ATHIRA JEWELLERY, PULPALLY POST, PULPALLY VILLAGE, SULTHAN BATHERY, WAYANAD. PUBLIC PROSECUTOR SMT.PUSHPALATHA.M.K THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl.R.P.No.1712 of 2010 ------------------------------- Dated this the 3rd day of June, 2010. O R D E R Challenging the conviction and sentence imposed against the revision petitioner u/s.138 of Negotiable Instruments Act, he preferred this revision petition. 2. According to the complainant, the accused borrowed a sum of Rs.40,000/- from the complainant on 2.1.2006 and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 3.3.2006 which when presented for encashment dishonoured, for want of fund and as the complainant approached the trial court with complaint, upon which S.T.No.224/06 was instituted in the Judicial First Class Magistrate Court-II, Sulthanbathery. During the course of the trial, the complainant adduced evidence, consists of oral testimony and Exts.P1 to P6 documents. Though there was no document from the side of the defence, DW1 was examined. After the consideration of entire materials and evidence, the court found that the accused has committed the offence Crl.R.P.No.1712 of 2010 2 punishable u/s.138 of Negotiable Instruments Act. Thus on convicting him, the trial court sentenced the revision petitioner to undergo simple imprisonment for 4 months and also directed to pay compensation of Rs.45,000/- to the complainant u/s.357(3) Cr.P.C. The default sentence is fixed as one month simple imprisonment. In appeal, the lower appellate court by its judgment dated 24.3.2010 in Crl.A.No.73/07, confirmed the conviction but the sentence was modified and sentenced the revision petitioner to undergo simple imprisonment for 2 months and also imposed a fine of Rs.40,000/- and in default sentence, the revision petitioner is directed to undergo simple imprisonment for one month. On realisation of the fine amount, the same is ordered to pay to the complainant. It is the above judgments and the conviction and sentence challenged in this revision petition. 3. I have heard the counsel for the revision petitioner and also perused the judgments. On a perusal of the judgments of the courts below and on hearing the counsel for the revision petitioner, it appears that the revision petitioner is not disputing Crl.R.P.No.1712 of 2010 3 the transaction, the execution and issuance of the cheque. Though the revision petitioner/accused admitted the transaction, according to him he had availed only a loan of Rs.20,000/- from the complainant and out of that amount Rs.8,000/- has already paid back. According to the revision petitioner, the cheque in question was entrusted with the complainant, connected with the above transaction. The trial court as well as the lower appellate court has concurrently found that though the revision petitioner has set up such a plea that was not substantiated. Based upon the available materials and evidence and after considering the view of the defence, the trial court as well as the lower appellate court has concurrently found that, the complainant has established his case and accordingly the revision petitioner is convicted . The finding arrived on by the courts below was purely on the basis of the evidence and materials on record and appreciating the same in its correct way. From the discussions and the materials referred by the courts below, it can be seen that the revision petitioner has miserably failed to establish his case especially, when he had Crl.R.P.No.1712 of 2010 4 admitted the execution and issuance of the cheque. Therefore according to me, the concurrent finding arrived on by the court below requires no interference. Thus the conviction preferred by the courts below is confirmed. 4. The learned counsel for the revision petitioner repeatedly submitted that, such a huge amount is not due from the revision petitioner to the complainant. It is also submitted that some breathing time may be granted to the revision petitioner to pay the amount and the sentence and the imprisonment awarded by the court below may be reduced by taking a lenient view. 5. Considering the facts and circumstances involved in the case, I am of the view that the above submission of the learned counsel can be considered, subject to the other circumstances and facts involved in the case. 6. The cheque in question is dated 3.3.2006 for an amount of Rs.40,000/- which according to the complainant, was due to him. Thus, for the last 4 years an amount of Rs.40,000/- is with the revision petitioner. The trial court though imposed a Crl.R.P.No.1712 of 2010 5 sentence of 4 months, the lower appellate court reduced the same to simple imprisonment for 2 months. When the trial court directed the revision petitioner to pay a sum of Rs.40,000/- as compensation to the complainant u/s.357(3) of Cr.P.C. and fixed one month simple imprisonment as a default sentence, the lower appellate court ordered compensation to the complainant u/s.357(1)(b) of Cr.P.C. and the cheque amount is imposed as fine, against the revision petitioner. 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 light of the above facts and circumstances and the settled position of law, I am of the view that the sentence of imprisonment ordered against the petitioner can be reduced to, till raising of the court and the amount of compensation fixed by the trial court can be restored as fine amount. In the result, this criminal revision petition is disposed of Crl.R.P.No.1712 of 2010 6 confirming the conviction of the revision petitioner u/s.138 of Negotiable Instruments Act as imposed by the Courts below. Accordingly, the revision petitioner is sentenced to undergo simple imprisonment till the raising of the court and he is also sentenced to pay a fine of Rs.45,000/- and in default to undergo simple imprisonment for 6 months and on realisation of the fine amount, the same shall be paid to the complainant u/s.357(1)(b) of Cr.P.C. Accordingly, the revision petitioner is directed to appear before the trial court on 3.9.2010. In case of any failure on the part of the revision petitioner in appearing before the court below as directed above and depositing 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. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/