IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 22ND JUNE 2010 / 1ST ASHADHA 1932 Crl.Rev.Pet.No. 1883 of 2010() ------------------------------ CRA.134/2009 of ADDL.SESSIONS COURT (ADHOC)-II, KOTTAYAM STC.107/2008 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED :- ------------------------------------------------------------------- M.K.THOMAS, MANIYAMKERIL HOUSE, KUMARAKOM.P.O, KOTTAYAM (WORKING AT SBT, KUMARANELLORE BRANCH, KOTTAYAM). BY ADV. SRI.SURIN GEORGE IPE RESPONDENT(S)/RESPONDENTS COMPLAINANT & STATE :- --------------------------------------------------------------------------------------- 1. SURESH KUMAR, UMMBUKATTU HOUSE, MOOLAVATTOM.P.O, KOTTAYAM. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR.M.R.VENUGOPAL THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt V.K.MOHANAN, J. ~~~~~~~~~~~~~ Crl.R.P.No.1883 of 2010 ~~~~~~~~~~~~~~~~~ Dated this the 22nd day of June 2010 O R D E R The accused in a prosecution for an offence u/s.138 of the 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 for an amont of Rs.1,50,000/-, 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 the Negotiable Instruments Act. With the said allegation, the complainant approached the Judicial First Class Magistrate Court-II (Mobile), Kottayam, by filing a formal complaint, upon which cognizance was taken u/s.138 of Crl.R.P.No.1883 of 2010 : 2 : Negotiable Instruments Act and instituted S.T.No.107/2008. During the trial of the case, PW1 was examined from the side of the complainant and Exts.P1 to P10 were marked. On the side of the defence DW1 was examined, though no documentary evidence was adduced. 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 the Negotiable Instruments Act. On such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment for 3 months and to pay a fine of Rs.1,50,000/- in default to undergo simple imprisonment for 3 months. It is also ordered that if the fine amount is realized the same shall be given to the complainant as compensation u/s.357 (1)(b) of Cr.P.C. 3. Though an appeal was filed at the instance of the revision petitioner/accused, by judgment dated 20.3.2010 in Crl.R.P.No.1883 of 2010 : 3 : Crl.A.No.134/2009 of the Court of Addl.District & Sessions Judge (Adhoc)-II, Kottayam dismissed the appeal confirming the conviction and sentence imposed by the trial court. 4. I have heard the learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. 5. The learned counsel for the revision petitioner submitted that the revision petitioner is a person working as a Peon in S.B.T. and he is not financially sound and if he is sentenced to undergo imprisonment it will affect his future career and therefore, a lenient view may be taken. 6. 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 relevant facts and circumstances involved in the case. 7. The cheque in question dated 15.11.2004 which covers an amount of Rs.1,50,000/-. Thus, going by the records and the findings of the courts below it has to be held that a sum of Rs.1,50,000/- which belong to the complainant is in the hands of the revision petitioner for the last 6 years. The Apex Court in Crl.R.P.No.1883 of 2010 : 4 : the decision in Damodar.S.Prabhu v. Sayed Babalal.H. [JT 2010(4) SC 457] has held that in the matter of dishonour of cheque the compensatory aspect of the remedy has to be considered, than the punitive aspect. Considering all the above relevant facts and the legally settled position, I am of the view that the sentence of imprisonment can be set aside and the fine amount can be enhanced. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner under Sec.138 of the N.I.Act as recorded by the trial court as well as the lower appellate court. The sentence of imprisonment awarded by the courts below is set aside. The revision petitioner is sentenced to pay a fine of Rs.1,70,000/- and in default, he is directed to undergo 6 months simple imprisonment and on realization of the fine amount, the same shall be paid to the complainant under Sec.357(1)(b) of Cr.P.C. Accordingly, the revision petitioner is directed to appear before the trial court on 22nd September, 2010. In case any failure on the part of the revision petitioner in appearing before the court below as directed above and in making the deposit of fine amount, the Crl.R.P.No.1883 of 2010 : 5 : 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 22.9.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, JUDGE. Jvt