IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 24TH MARCH 2009 / 3RD CHAITHRA 1931 Crl.Rev.Pet.No. 1188 of 2002(B) ------------------------------- CRA.110/1999 of SESSIONS COURT, TRIVANDRUM CC.398/1997 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, ATTINGAL .................... PETITIONER(S): APPELLANT/ACCUSED: ------------------------------------------------------------- A.NALINAKSHAN NAIR, S/O.APPUKUTTAN PILLAI, INDIRA BHAVAN, M.G.ROAD, CHITTATTINKARA DESOM, ATTINGAL. BY ADV. MR.B.S.SURESH (CHIRAKKARA) RESPONDENT(S): COMPLAINANT & STATE: ----------------------------------------------------------------- 1. S.BHARGAVAN, S/O. SANKU PILLAI, RAJANI NIVAS, PALACE ROAD, ATTINGAL. 2. STATE, REPPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. MR.M.R.RAJESH R2 BY PUBLIC PROSECUTOR SMT. PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.1188 of 2002 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 24th March, 2009 ORDER The revision is directed against the concurrent verdict of guilty rendered against the revision petitioner/accused under Section 138 of the Negotiable Instruments Act (for short 'the N.I.Act'). Negativing his plea of not guilty, the learned Magistrate, after trial, convicted him for the offence and sentenced him to undergo simple imprisonment for one year. The learned Sessions Judge in appeal confirmed the conviction, but modified the sentence to simple imprisonment for 30 days with direction to pay compensation of Rs.30,000/- to the complainant under Section 357(3) of the Code of Criminal Procedure. Questioning the legality, propriety and correctness of the conviction and sentence as indicated above, the accused has preferred this revision. 2. I have perused the records of the case. Towards discharge of a debt, the accused issued Ext.P2 cheque for a sum of Rs.30,000/- promising its encashment on presentation in due course is the case of the complainant. The cheque on presentation was however dishonoured due to insufficiency of funds in the account of the accused. Statutory notice issued intimating dishonour and demanding Crl.R.P.No.1188/02 - 2 - the sum covered by the cheque was acknowledged, but not responded with reply or payment. The complainant, thereupon, launched the prosecution against the accused for the offence under Section 138 of the N.I.Act. The accused, on appearance, pleaded not guilty. The complainant examined one witness, his power of attorney, as P.W.1 and got marked Exts.P1 to P6 to prove his case. The accused set up a defence that the cheque was issued in blank form with signature alone as security and there was no transaction with the complainant as alleged. The non-examination of the complainant to prove the transaction was also impeached since the power of attorney of the complainant, his brother, alone was examined on behalf of the complainant. No defence evidence was produced by the accused. The learned Magistrate, after appreciating the materials tendered, found the accused guilty of the offence and he was thereupon convicted and sentenced as indicated earlier. The appeal preferred by the accused impeaching the conviction was also unsuccessful except to the extent of getting a modification of the sentence. 3. The cheque, Ext.P2, admittedly arose from the account maintained by the accused and it was dishonoured due to insufficiency of funds. Further more, it has been established that Crl.R.P.No.1188/02 - 3 - despite receiving the notice on dishonour of the instrument the accused did not send a reply. The defence canvassed by the accused that the cheque was issued in blank form with signature alone as security has to be appreciated in the backdrop no reply was sent after receiving the advocate notice. No material was also placed before the court to substantiate the defence that the cheque had been issued as security, as contended by the accused. P.W.1, the power of attorney of the complainant, is none other than his brother and he had given evidence that he was present when the transaction between the complainant and the accused took place whereunder Ext.P2 cheque was given by the accused. The learned Magistrate who had the opportunity to watch his demeanour while recording his testimony, found his evidence reliable, convincing and trustworthy. On reappreciating the entire materials tendered in the case, the learned Sessions Judge concurred with the findings arrived by the learned Magistrate. No circumstance whatsoever exists to dislodge the concurrent findings so entered by the two courts below. I find that the conviction imposed against the accused for the offence under Section 138 of the N.I.Act is fully supported by legal evidence and it deserves only to be confirmed, and I do so. 4. Now as regards sentence imposed against the accused, I am Crl.R.P.No.1188/02 - 4 - of the view that in the absence of exceptional circumstances, the offender convicted of an offence under Section 138 of the N.I.Act need not be imposed a punishment of incarceration in prison. Penal provisions have been incorporated in the N.I.Act to insulate commercial transactions involving cheques, which are issued to make payments. Having regard to the nature of transaction involved in the present case, I do not find any exceptional circumstance to impose a prison term on the revision petitioner/accused as part of the punishment. Sentence imposed against the accused is modified directing him to undergo imprisonment till the rising of the court and to pay a compensation of Rs.35,000/- under Section 357(3) of the Cr.P.C. to the complainant within two months from the date of this order. In default of payment of compensation as directed above, the revision petitioner/accused shall undergo simple imprisonment for two months. The accused shall appear and his sureties shall produce him before the Judicial First Class Magistrate-I, Attingal on 1st June, 2009, and the learned Magistrate shall execute the sentence as directed. srd S.S. SATHEESACHANDRAN, JUDGE