IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 30TH JULY 2010 / 8TH SRAVANA 1932 Crl.Rev.Pet.No. 2300 of 2010() ------------------------------------------------ CRA.409/2008 of II ADDL. SESSIONS COURT, TRIVANDRUM CC.148/2006 of JUDL. FIRST CLASS MAGISTRATE COURT, NEYYATTINKARA .................................................. REVN. PETITIONER(S): REV.PETITIONER/APPELLANT/ACCUSED: ----------------------------------------------------------------------------------------------------- VIPIN RAJ, S/O.RAJENDRAN NAIR, VIJAYA VILASAM, EANIKKARA, KARAKKULAM VILLAGE, NEDUMANGAD. BY ADV. MR.M.RAMASWAMY PILLAI SRI.P.M.JOSEPH RESPONDENT(S): RESPONDENT/COMPLAINANT & STATE: -------------------------------------------------------------------------------------------- 1. ASOKAN, ANU BHAVAN, KARAMPLAVILA, THALAYAL DESOM, ATHIYANNOOR VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR. C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2300 of 2010 ------------------------------------------------ Dated this the 30th day of July, 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, towards the discharge of a debt due to the complainant, issued a cheque dated 15.08.2005 for a sum of Rs.3,00,000/- (Rupees Three lakhs only), which when presented for encashment dishonoured 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 same allegation, the complainant approached the Judicial First Class Magistrate Court-II, Neyyattinkara by filing Crl. R.P.No.2300/2010 2 a formal complaint and instituted C.C.No.1428/2005, taking cognizance u/s.138 of Negotiable Instruments Act. Subsequently, the above case was Transferred to the Judl. First Class Magistrate Court-VI, Neyyattinkara, wherein the case is renumbered as C.C.No.148/2006. During the trial of the case, PW1 was examined from the side of the complainant and Exts.P1 to P6 were marked. From the side of the defense, DW1 was examined and Ext.D1 was produced. 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 Crl. R.P.No.2300/2010 3 sentenced the revision petitioner to undergo simple imprisonment for a period of 6 months and also directed him to pay an amount of Rs.3,05,000/- to the complainant as compensation u/s.357(3) of Cr.P.C. Though no default sentence is fixed, it was ordered that in case of default in paying the compensation, the complainant is authorized to realise the compensation u/s.421 of Cr.P.C as it was a fine. 3. Aggrieved by the above order of conviction, though an appeal was filed by judgment dated 27.01.2010, Crl.A.No.409/2008 by the court of Addl. Sessions Judge-II, Thiruvananthapuram allowed the appeal only in part and thus while confirming the conviction, the sentence of imprisonment is reduced till raising of the court. It is also ordered that accused to pay a sum of Rs.3,10,000/- to the complainant as compensation u/s.357(3) of Cr.P.C. and the default sentence is fixed as 6 months simple imprisonment. Crl. R.P.No.2300/2010 4 Accordingly, the revision petitioner was directed to appear before the trial court on 10.03.2010 to receive the sentence. 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 courts below against the revision petitioner u/s.138 of Negotiable Instruments Act, is approved. Crl. R.P.No.2300/2010 5 6. As this court is not inclined to interfere with the conviction found against the revision petitioner, the counsel for the revision petitioner submitted that, some breathing time may be granted to deposit the compensation amount. I am of the view that the said submission can be considered but subject to other relevant materials and circumstances involved in the case. 7. The apex court in a recent decision reported in Damodar S.PrabhuV. 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. Having regard to the facts and circumstances involved in the case and as per the records, the cheque is dated 15.08.2005 that to have an amount of Rs.3,00,000/-. As per the findings of the courts below and as approved by this court an amount of Rs.3,00,000/-, which belonged Crl. R.P.No.2300/2010 6 to the complainant is with the revision petitioner for the last 5 years. Considering the above facts and legal position, I am of the view that, while maintaining the sentence of imprisonment ordered by the lower appellate court, the compensation 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 as modified by the lower appellate court is confirmed. The revision petitioner is further directed to pay a sum of Rs.3,20,000/- (Rupees Three lakhs twenty thousand only) to the complainant as compensation u/s.357(3) of Cr.P.C. within 4 months from today and in case of default in paying the amount within the above stipulated time, the revision petitioner is directed to undergo simple imprisonment for a period Crl. R.P.No.2300/2010 7 of 4 months. Accordingly, the revision petitioner is directed to appear before the trial court on 30.11.2010 to pay the compensation amount as directed by this court. In case any failure on the part of the revision petitioner in appearing before the court below as directed above, 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. The execution of the warrant if any pending against the revision petitioner shall be differed till 30.11.2010 Criminal revision petition is disposed of accordingly. Sd/- V.K.Mohanan Judge ss/- //True copy// P.A to Judge