IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 28TH SEPTEMBER 2010 / 6TH ASWINA 1932 Crl.Rev.Pet.No. 1039 of 2007() ------------------------------------------ CRA.507/2001 of ADDL.SESSIONS COURT-II, KOZHIKODE CC.952/1999 of JUDL.MAGISTRATE OF FIRST CLASS, VADAKARA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED. ------------------------------------------------------------------ E.P.MOOSA, S/O.MAMMU, IYYOTHUPOYIL HOUSE, PONMERI AMSOM, PARAMBIL DESOM. BY ADV. SRI.K.PRAVEEN KUMAR RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE. --------------------------------------------------------------------------------------- 1. K.MANOJAN, S/O.NARAYANAN, KAKKATTU HOUSE, KOTTAPPALLY AMSOM, VALLYAD DESOM. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.V.TEKCHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1039 of 2007 ------------------------------- Dated this the 28th 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 the accused/revision petitioner borrowed a sum of Rs.75,000/- from the complainant and towards the discharge of the debt due to the complainant, he issued a cheque dated 31.8.99 for a sum of Rs.75,000/-, 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 in spite 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, Vadakara, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.952/2009 During CRL.R.P. 1039/2007 :-2-: the trial of the case, from the side of the complainant, PWs 1 and 2 were examined and produced Exts.P1 to P7 (a). 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 one year under section 138 of the N.I.Act. 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 3.9.2004 in Crl.A.No.507/2001, the II Addl. Sessions Judge, Kozhikode, dismissed the appeal, confirming the conviction and sentence imposed against the revision CRL.R.P. 1039/2007 :-3-: petitioner. 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 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 petitioner submitted that the sentence of imprisonment imposed by the courts below is highly unreasonable and disproportionate to the CRL.R.P. 1039/2007 :-4-: offence alleged against the revision petitioner. It is also submitted that the petitioner is prepared to compensate the complainant, provided, his sentence of imprisonment is set aside. 7. On a perusal of the evidence and materials on record, it appears that the cheque in question is dated 12.6.98, that too for an amount of Rs.75,000/-. As per the findings of the courts below, the amount covered by the cheque in question is due to the complainant and the same is with the revision petitioner for the last 12 years. 8. 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. Therefore, considering the above legal position and the facts, I am of the view that the sentence imposed requires some modification and at the same time, complainant should be compensated adequately. In the result, this revision petition is disposed of CRL.R.P. 1039/2007 :-5-: confirming the conviction against the revision petitioner u/s.138 of Negotiable Instruments Act as recorded by the courts below. Accordingly, while confirming the conviction, in supersession of the sentence of imprisonment ordered by the trial court and approved by the appellate court, the revision petitioner is sentenced to pay a fine of Rs.1,15,000/- within three months from today and in case of any failure in depositing the above fine amount, the revision petitioner is directed to undergo simple imprisonment for a period of three months. Accordingly, the revision petitioner is directed to deposit the fine amount on or before 28.12.2010 and in case of any failure on the part of the revision petitioner in depositing the fine amount as directed above, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence including the realization of the fine amount. On realisation of the fine amount, a sum of Rs.1,10,000/- shall be paid to the complainant as compensation under section 357(1)(b) of Cr.P.C. and the CRL.R.P. 1039/2007 :-6-: remaining amount shall be deposited in the State Exchequer. Coercive steps if any pending against the revision petitioner shall be deferred till 28.12.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. kvm/-