IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 20TH MAY, 2010 / 30TH VAISAKHA, 1932 Crl.Rev.Pet.No. 1580 of 2010 -------------------------------- (CRA.671/2008 of ADDL.SESSIONS COURT (ADHOC-II), KOTTAYAM ST.1673/2007 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM) .................... REVN. PETITIONER: --------------------- N.P.GOPINATH, S/O.PAILY, NARIKUZHIYIL, VETTIMUKEL, ETTUMANOOR, KOTTAYAM. BY ADV. SRI.M.P.MADHAVANKUTTY RESPONDENT(S)/RESPONDENTS/STATE & COMPLAINANT: --------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. GEORGEKUTTY.T.A., S/O.ABRAHAM, THATTAMPARAMBIL, NEENDOOR.P.O., KOTTAYAM. R1 BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.R.P.No. 1580 of 2010 --------------------------------------------- Dated this the 20th day of May, 2010 O R D E R Having failed in two successive stages of the litigation, the accused in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') approached this Court by preferring the above revision petition challenging the judgments of the trial court as well as the lower appellate court. 2. The case against the revision petitioner/accused is that he had received money from the complainant and to discharge such debt, he issued a cheque dated 5.3.2007 for a sum of Rs.80,000/- and when the cheque is presented for encashment, the same was dishonoured for want of sufficient fund in the account maintained by the revision petitioner. On the basis of the complaint preferred by the complainant, S.T.No.1673 of 2007 was instituted in the court of the Judicial First Class Magistrate Court-II (Mobile), Kottayam and during the trial of the above case, Crl.R.PNO.1580 of 2010 :-2-: the second respondent/complainant adduced his evidence consisting of the documentary evidence such as Exts.P1 to P6 and the oral evidence of himself as PW1. Though no witness was examined for defence, Exts.D1 and D2 were marked. After considering the materials and evidence, the trial court found that the revision petitioner/accused has committed the offence and accordingly, he is convicted under Section 138 of the N.I.Act and sentenced to undergo simple imprisonment for one month and he is also directed to pay compensation of Rs.80,000/- to the complainant under Section 357(3) of the Cr.P.C. Though the above conviction and sentence are challenged in appeal, the learned Sessions Judge, by judgment dated 20.3.2010 in Crl.A.No.671 of 2008 of the Court of Additional District and Sessions Judge (Adhoc-II), Kottayam partly allowed the appeal, retaining the conviction ordered by the trial court. But, the sentence imposed was modified and reduced to till the rising of the court and also directed the revision Crl.R.PNO.1580 of 2010 :-3-: petitioner to pay fine of Rs.80,000/-, in default to undergo imprisonment for one month. It is also directed that if the fine amount is realised, the entire amount shall be given to the complainant as compensation under Section 357(1)(b) of the Cr.P.C. It is the above conviction and sentence challenged in this Crl.R.P. 3. Reiterating the contentions raised in the trial court as well as in the appellate court, the learned counsel for the revision petitioner submitted that the complainant has miserably failed to establish the transaction. Learned counsel pointed out that by producing Exts.P1 and P2, the accused has established a case that the complainant was not having that much financial capacity to give such a huge amount by way of loan to the accused. Both the courts below repelled the above contention. Merely because the complainant was a defendant in a suit for realisation of money is not sufficient to hold that the complainant was pauper at the alleged time of the transaction. Going by the Crl.R.PNO.1580 of 2010 :-4-: judgments of the courts below, it appears to me that the accused had admitted the transaction between himself and the complainant though not as claimed by the complainant, and according to him, he had repaid the entire amount. According to the accused, the cheque in question was entrusted with the complainant at the time of the above mentioned transaction. So, from the pleadings set up by the revision petitioner/accused, it can be seen that he had admitted his transaction with the complainant and the entrustment of the cheque connected with such a transaction. Therefore, the questions to be considered are whether the revision petitioner/accused had succeeded in establishing that he had discharged the liability of which he admitted and whether he had established his case that the cheque in question was the one entrusted with the complainant at the time of the admitted transaction. Absolutely, there is no evidence to prove those aspects. Under the above factual and legal position, I find no Crl.R.PNO.1580 of 2010 :-5-: illegality or irregularity or impropriety in the judgments of the lower appellate court. Therefore, there is no merit in the revision petition. 4. Learned counsel for the revision petitioner submitted that some time may be granted to the revision petitioner to make the payment. I am of the view that the said prayer can be allowed, but subject to condition that the fine amount awarded by the lower appellate court be enhanced. The cheque in question is dated 5.3.2007. Thereafter, three years are over. Though the trial court had sentenced the revision petitioner to undergo one month imprisonment, the appellate court modified the sentence and refixed the same as only one day imprisonment. 5. Having regard to the facts and circumstances of the case, I am of the view that three months time can be granted to make the payment. Recently, a three Judges Bench of the Honourable Apex Court in the decision reported in Damodar.S.Prabhu v. Sayed Babalal.H. [JT Crl.R.PNO.1580 of 2010 :-6-: 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 decision, I am of the view that while confirming the imprisonment imposed by the lower appellate court, the sentence of fine can be enhanced to Rs.85,000/- (Rupees Eighty Five Thousand only) and the default sentence can be fixed as three months simple imprisonment. In the result, this Criminal Revision Petition is disposed of confirming the conviction of the revision petitioner under Section 138 of the N.I.Act as decided by the trial court as well as the lower appellate court. The sentence awarded by the lower appellate court is confirmed with respect to the substantial sentence of imprisonment whereas the sentence of fine is enhanced to the tune of Rs.85,000/- (Rupees Eighty Five Thousand only) instead of Rs.80,000/- and in case the revision petitioner fails to deposit the fine amount, he is directed to undergo simple Crl.R.PNO.1580 of 2010 :-7-: imprisonment for a further period of three months. On realising the fine amount, the entire amount shall be given to the complainant under Section 357(1)(b) of the Cr.P.C. Accordingly, the revision petitioner/accused is directed to appear before the trial court on 20.8.2010 to receive the sentence and to make the deposit of fine amount. In case of any failure on the part of the revision petitioner in appearing before the court below, the trial court is free to take coercive steps to execute the sentence. Coercive steps, if any, are already taken and pending against the petitioner, the same shall be kept in abeyance till 20.8.2010. V.K.Mohanan, Judge. MBS/ Crl.R.PNO.1580 of 2010 :-8-: V.K.MOHANAN, J. -------------------------------------------- Crl.A.NO. OF 200 ------------------------------------ J U D G M E N T Crl.R.PNO.1580 of 2010 :-9-: DATED: -2-2010 Crl.R.PNO.1580 of 2010 :-10-: