IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 17TH SEPTEMBER 2010 / 26TH BHADRA 1932 Crl.Rev.Pet.No. 2052 of 2010(B) ------------------------------------- (CRA.351/2008 of ADDL. DISTRICT AND SESSIONS COURT, FAST TRACK (ADHOC-II) KOZHIKODE S.T.NO.865/2006 OF SPECIAL JUDICIAL FIRST CLASS MAGISTRATE (MARAD CASES), KOZHIKODE) .................... REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------- ANISH KUMAR.V.S., S/O.SURENDRAN AGED 32 YEARS, VELAMPARAMBIL HOUSE, KUPPAKKAYAM P.O., KOTTAYAM. BY ADV. SRI.E.D.GEORGE RESPONDENT(S)/ RESPONDENTS/COMPLAINANT & STATE: --------------------------------------------------------------------- 1. PARASMAL LUNAWAT, S/O.PADMACHAND JAIN, PROPRIETOR, DOLPHIN FINANCIAL SERVICES, EKP COMPLEX, OPP.PAICO, KALLAI ROAD, CALICUT, REPRESENTED BY POWER OF ATTORNEY HOLDER, K.GIRISHAN, S/O.BHASKARAN. 2. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADVS. SRI.SRINATH GIRISH SRI.E.NARAYANAN R2 BY PUBLIC PROSECUTOR SMT. P.N.SUMANGALA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SVS/ V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2052 of 2010 ------------------------------- Dated this the 17th 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 availed a hire purchase loan and towards the discharge of the said liability, the accused/revision petitioner issued a cheque dated 1.1.2006 for a sum of Rs.1,25,000/-, 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 Specl. Judl. First Class Magistrate Court (Marad cases)-Kozhikode, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable 2 Crl. R.P.No.2052 of 2010 Instruments Act and instituted S.T.No.865/06. During the trial of the case, the complainant himself was mounted to the box and gave evidence as PW1 and Exts.P1 to P7 were marked, from the side of the complainant. Though no oral evidence adduced from the side of the defence, Ext.D1 is produced and marked. 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 2 months and also directed to pay a fine of Rs.92,000/- and the default sentence is fixed as 1 month simple imprisonment. It is also ordered that on realisation of the fine amount, a sum of Rs.92,000/- shall be paid to the complainant 3 Crl. R.P.No.2052 of 2010 as compensation u/s.357(1) of Cr.P.C. 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 4.7.2009 in Crl.A.351/08, the Court of Addl. District & Sessions Judge Fast Track (Ad hoc)-II, Kozhikode, dismissed the appeal, confirming the conviction and sentence imposed against the revision petitioner. 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 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 4 Crl. R.P.No.2052 of 2010 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, the sentence of imprisonment ordered by the trial court is unreasonable and exorbitant and the same may be set aside and also further 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 favourably but subject to other relevant inputs involved in the case. 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 1.1.2006, for an amount of Rs.1,25,000/-. 5 Crl. R.P.No.2052 of 2010 Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.92,000/-, which belonged to the complainant is with the revision petitioner for the last 4 years. So, while granting some time to pay the fine amount, the amount 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 ordered by the courts below is modified and reduced to one day simple imprisonment ie., till the rising of the court and while confirming the sentence to pay the fine, the fine amount is enhanced to the tune of Rs.96,000/- and 3 months time is granted to the revision petitioner to deposit the said fine amount. It is made clear that the default sentence fixed by the court below will attract only if the revision petitioner fails to pay the fine amount, within 3 months from today. Accordingly, the revision petitioner is directed to appear before the trial court to receive the modified 6 Crl. R.P.No.2052 of 2010 sentence and to pay the fine amount on 18.12.2010. In case any failure on the part of the revision petitioner in appearing and 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. If the fine amount is realised, a sum of Rs.95,000/- 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. Coercive steps if any, pending against the revision petitioner shall be deferred till 18.12.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/