IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 4TH MARCH 2011 / 13TH PHALGUNA 1932 Crl.Rev.Pet.No. 592 of 2011 --------------------------------------- [CRL.A.133/2007 OF II ADDITIONAL SESSIONS COURT, KOLLAM, ST.NO.67/2006 OF JFCM-IV, KOLLAM] .................... REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------------- CHACKO UMMEN, CHUNKATHIL VEEDU, URUKKUNNU P.O, THENMALA, KOLLAM. BY ADV. SRI.G.BHAGAVAT SINGH. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. C.CHANDRAKUTTY, C.S. BHAVAN PERUMPUZHA PO, KOLLAM. R1 BY PUBLIC PROSECUTOR SMT. REKHA.C. NAYAR, R2 BY ADVS. SRI.O.V.MANIPRASAD, SRI.SAJU J PANICKER. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. V.K.MOHANAN, J ------------------------------- Crl.R.P.NO.592 OF 2011 ------------------------------------------------- Dated this the 4th day of March, 2011. ORDER The challenge in this Crl.R.P. is against the conviction and sentence imposed on the revision petitioner who is the accused in a prosecution for the offence under Section 138 of the Negotiable Instruments Act. 2. The learned counsel for the revision petitioner vehemently submitted that the complainant has miserably failed to establish the transaction and the above defect was not properly considered by the trial court as well as the appellate court. Sticking on the defence taken by the revision petitioner during the trial and the appeal, the learned counsel submitted that the cheque in question is the one which entrusted with one Kozhy Panikker when the revision petitioner availed a loan from him connected with the marriage of the daughter of the revision petitioner and there is no transaction between the complainant and the accused. Another contention taken by the counsel is to the effect that there is no proper notice served on the revision petitioner in terms of the proviso to Section 138 of the NI. Act. Crl.R.P.NO.592 OF 2011 2 3. I am unable to sustain the above contention. The trial court as well as the appellate court has elaborately considered the above two contentions as discernible from the observation and findings of the courts below. It is not disputed by the learned counsel that Ext.P4 notice was sent in the correct address of the accused. It is true that the learned Magistrate has observed that there is slight variation with respect to the signature that seen in Ext.P4 as well as Ext.P6 acknowledgment card. There is no dispute that Ext.P4 notice was not sent in the correct address. If the petitioner has got a case that the notice was received by somebody, it was for him to establish those facts either by sending the disputed documents for the expert opinion or by examining the Postman concerned. But no such steps was taken. In view of the fact that Ext.P4 was sent in the correct address and in the absence of any contra evidence, I find no reason to interfere with the findings of the trial court as well as the appellate court regarding the service of notice. 4. Regarding the transaction the complainant has adduced evidence as PW1 and produced Ext.P1 to P6 documentary evidence. The learned magistrate has observed that though PW1 subjected to lengthy cross examination nothing was brought out Crl.R.P.NO.592 OF 2011 3 to discard his version. Thus, it can be seen that the allegation has established by the complainant. The complainant has adduced oral evidence besides that he has produced documentary evidence including that of Ext.P1 cheque which bears the signature of the revision petitioner. So the trial court as well as the appellate court correctly accepted the evidence of PW1 and found that the allegation raised by the complainant against the revision petitioner is true. In this juncture, it is relevant to consider the plea taken by the accused. According to the accused/revision petitioner, the cheque in question was entrusted with one Koshy Panikker. Except the interested version of DW1, who is none other than the son of the revision petitioner, no other evidence is adduced. There is nothing on record to show that the cheque in question is the one which entrusted with Koshy Panikker and as to how that cheque reached in the hands of the complainant. In the absence of any plausible explanation supported by acceptable evidence it cannot be said that the defence had discharged its burden of rebutting the presumption available in favour of the complainant under Section 139 of the NI. Act. Therefore, I find no reason to interfere with the concurrent findings of the trial court as well as Crl.R.P.NO.592 OF 2011 4 the appellate court. 5. As this Court is not inclined to interfere with the order of conviction, the learned counsel for the revision petitioner submitted that the sentence of imprisonment ordered against the revision petitioner is unreasonable and exorbitant and therefore a lenient view may be taken and the petitioner may be granted sufficient time to compensate the complainant. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission of the learned counsel requires positive consideration. 6. The cheque in question is dated 03.11.2001, that too, for an amount of Rs.1,40,000/-. As per the findings of the trial court as well as the appellate court which approved by this Court the said amount is due to the complainant for the last 9 years. But so far no amount is seen paid. It is also relevant to note that though the trial court has imposed a sentence of nine months simple imprisonment and directed to pay fine which is equal to the cheque amount, the appellate court reduced the sentence of imprisonment as well as the fine amount. The apex court, in its recent decision in Damodar S.Prabhu v. Sayed Babalal H (J.T.2010 (4) SC 457), has held that in case of dishonour of Crl.R.P.NO.592 OF 2011 5 cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. Therefore, according to me, the sentence of imprisonment ordered by the courts below requires modification and when granting some time to pay the fine amount the interest of complainant has also to be protected. Therefore, the fine amount can be enhanced slightly considering the fact that the amount is due for the last nine years. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner under Section 138 of the N.I. Act. Accordingly, the sentence of imprisonment imposed by the trial court and confirmed by the appellate court is modified and reduced into one day simple imprisonment, i.e. till the rising of the court. While modifying the sentence of imprisonment as indicated above, the sentence to pay fine is also modified and the revision petitioner is directed to pay a fine of Rs.1,75,000/- within three months from today and in case of any default, the revision petitioner is directed to undergo simple imprisonment for a period of two months. Accordingly, the revision petitioner is directed to appear before the trial court on 06.06.2011 to receive the modified sentence of imprisonment and fine as ordered by this court. If there is any failure on the part of the Crl.R.P.NO.592 OF 2011 6 revision petitioner in complying with the above condition, the trial court is free to take steps to execute the sentence and for realisation of fine amount. On realisation of the fine amount a sum of Rs.1,70,000/- shall be paid to the complainant as compensation under Section 357(1)(b) Cr.P.C and the remaining of Rs.5,000/- shall be deposited in the State Exchequer. Coercive steps, if any, pending against the revision petitioner shall be deferred till 6th June, 2011. This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE pm