IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 27TH SEPTEMBER 2010 / 5TH ASWINA 1932 Crl.Rev.Pet.No. 2633 of 2010() ------------------------------------------- CRA.441/2008 of ADDL. SESSIONS COURT (ADHOC) III, PALAKKAD ST.367/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PALAKKAD .................... REVN. PETITIONER(S): APPELLANTS 1 & 2 /ACCUSED 1 & 2 ------------------------------------------------------------------------------------- 1. VARSHITHA KURIES REGISTRAR,NO.26/4639/94 OTTAPALAM BRANCH, NEAR N.S.S.COLLEGE,PALLAPPURAM, OTTAPALAM TALUK, PIN-679 103. 2. RAVINDRANATH, MANAGING PARTNER, VARSHITHA KURIES REGISTERED OFFICE, PALLIPPURAM, BRANCH OFFICE,OTTAPALAM, S/O.BALAKRISHNAN,"VANDANAM",AIKATHARAPARAMBIL IRUPATHADI HOUSE,CHINAKKATHUR, PALLAPPURAM, OTTAPALAM TALUK, PIN-679 103. BY ADV. SRI.P.K.MOHANAN(PALAKKAD) RESPONDENT(S): RESPONDENT/COMPLAINANT ---------------------------------------------------------------------- 1. P.V.HARIDASAN, S/O.T.V.GOPALAKRISHNAN, SANGAMAM VEEDU, KARINKARAPPULLY, KODUMBU VILLAGE, KODUMBU, PALAKKAD TALUK-678 551. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-PIN-682 031. R2 BY PUBLIC PROSECUTOR SRI.V.TEKCHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2633 of 2010 ------------------------------- Dated this the 27th 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, he was a subscriber of a kuri conducted by the accused and he bid the kuri on 4.8.2004 and towards the discharge of the liability, the accused issued 2 cheques for Rs.62,599/- each. One cheque is dated 30.10.2004 and another one is dated 7.11.2004. But the latter cheque dated 7.11.2004, 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 Judl. First Class Magistrate Court-I, 2 Crl. R.P.No.2633 of 2010 Palakkad, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.367/06. During the trial of the case, the complainant himself was mounted to the box and gave evidence as PW1 and Exts.P1 to P4 were marked, from the side of the complainant. Though no oral evidence adduced from the side of the defence, Exts.D1 and D2 were 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 6 months and to pay a compensation of Rs.62,599/- u/s.357(3) of Cr.P.C. and the default sentence was fixed as 3 months simple imprisonment. 3 Crl. R.P.No.2633 of 2010 3. Though an appeal was filed, at the instance of the 1st and 2nd accused, by judgment dated 19.1.2010 in Crl.A.441/08, the Court of Sessions Judge-Palakkad, allowed the appeal only in part and thus while confirming the conviction, the sentence of imprisonment imposed against the revision petitioner is set asided and accordingly, the 2nd and 3rd accused are sentenced to pay a fine of Rs.35,000/- each and the default sentence is fixed as simple imprisonment for one month each. It is also ordered that on realisation of the fine amount, the same shall be given to the complainant as compensation u/s.357(1) of Cr.P.C. It is the above conviction and sentence challenged in this revision petition by the accused Nos.1 and 2. 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 4 Crl. R.P.No.2633 of 2010 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. 6. As this court is not inclined to interfere with the order of conviction recorded by the courts below, the counsel for the revision petitioners submitted that, some breathing time may be granted to pay the fine amount. As per the order of the appellate court, there is no direction against the first revision petitioner for paying any 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 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 5 Crl. R.P.No.2633 of 2010 compensatory aspect of the remedy should be given priority over the punitive aspects. In the present case, the cheque in question is dated 7.11.2004, for an amount of Rs.62,599/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.62,599/-, which belonged to the complainant is with the revision petitioner for the last 6 years. So, while granting some time 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 confirming the sentence of fine ordered by the appellate court against the revision petitioners, the 2nd revision petitioner is directed to pay a fine of Rs.40,000/- within 3 months from today and in case of default in paying the fine amount, the 2nd revision petitioner is directed to undergo simple imprisonment for 3 months. Accordingly, the 2nd revision petitioner is directed to deposit the fine amount in the trial court 6 Crl. R.P.No.2633 of 2010 on or before 27.12.2010. In case any failure on the part of the 2nd revision petitioner 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. On realisation of the fine amount, a sum of Rs.37,500/- 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. Execution of warrant if any, pending against the revision petitioner shall be deferred till 27.12.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/