IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 11TH OCTOBER 2010 / 19TH ASWINA 1932 Crl.Rev.Pet.No. 2795 of 2010 (D) ------------------------------ CRA.426/2008 of II ADDL.SESSIONS COURT, KOLLAM CC.1258/2005 of CHIEF JUDICIAL MAGISTRATE COURT, KOLLAM .................... REVN. PETITIONER/APPELLANT/ACCUSED: ----------------------------------------------------------------- T.P.THYAGU, S/O. UPENDRAN CHANDU NIVAS, NJEKKADU,VADASSERIKONAM PO VARKALA, THIRUVANANTHAPURAM. BY ADV. SRI.M.TRIPTEN RESPONDENT: -------------------- 1. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. 2. H.SUBAIR THENGUVILA PUTHENVEEDU, THATTAMALA 691 020 KOLLAM. BY PUBLIC PROSECUTOR, SRI.V.TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2795 of 2010 ------------------------------- Dated this the 11th day of October, 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, towards the discharge of the liability due to the complainant, the accused issued a cheque dated 3.5.2005 for a sum of Rs.30,000/-, 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 Chief Judl. Magistrate Court-Kollam, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted 2 Crl. R.P.No.2795 of 2010 C.C.No.1258/05. During the trial of the case, PW1, the complainant himself was examined from the side of the complainant and Exts.P1 to P6 were marked. 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 3 months. 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 10.6.2010 in Crl.A.426/08, the Court of IInd Addl. Sessions Judge, Kollam, while dismissing the appeal, confirmed the conviction, and the 3 Crl. R.P.No.2795 of 2010 sentence imposed is modified and reduced to imprisonment till the rising of the court and the revision petitioner is directed to pay a fine of Rs.30,000/- and the default sentence is fixed as 7 days simple imprisonment. It is also ordered that on realisation of the fine amount, the same shall be paid to the complainant as compensation u/s.357(1)(b) of Cr.P.C. 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 4 Crl. R.P.No.2795 of 2010 Instruments Act, is approved. 6. As this court is not inclined to interfere with the conviction recorded by the courts below, the learned 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 favourably but subject to other facts and circumstances 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 3.5.2005, that too for an amount of Rs.30,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.30,000/- which belonged to the complainant is in the hands of the revision petitioner for the last 5 years. Considering the above facts and settled legal position, I 5 Crl. R.P.No.2795 of 2010 am of the view that, while granting some time to the revision petitioner to pay the fine, 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, while approving the sentence of imprisonment and the fine as modified and fixed by the appellate court, the fine amount is enhanced to the tune of Rs.37,500/- and the revision petitioner is granted 3 months time from today to pay the fine amount and if there is any failure in depositing the fine amount within the time stipulated by this court, the revision petitioner is directed to undergo simple imprisonment for 2 months. Accordingly, the revision petitioner is directed to appear before the trial court on 11.1.2011, to receive the sentence of imprisonment and to pay the fine amount as directed by this court. On realisation of the fine amount, a sum of Rs.35,000/- 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 6 Crl. R.P.No.2795 of 2010 Exchequer. In case, any failure on the part of the revision petitioner in appearing 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. The execution of warrant if any, pending against the revision petitioner shall be deferred till 11.1.2011. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/