IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 29TH SEPTEMBER 2010 / 7TH ASWINA 1932 Crl.Rev.Pet.No. 2852 of 2010() ------------------------------ CRA.243/2007 of I ADDL. SESSIONS COURT, KOLLAM CC.1632/2003 of JUDL.MAGISTRATE OF FIRST CLASS-I, KARUNAGAPPALLY .................... REVISION PETITIONER(S): APPELLANT IN CRL.A.NO.243/2007/ ACCUSED IN CC.1632/2003: --------------------------------------------------------------------------------- ANANDAVALLY N., SREELAKAM HOUSE, PUTHUKKAD, CHAVARA, KARUNAGAPPALLY TALUK, KOLLAM DISTRICT. BY ADV. SRI.P.V.DILEEP RESPONDENT(S): RESPONDENT NO.1 IN CRL.A.NO.243/2007: COMPLAINANT IN CC.1632/2003: RESPONDENT NO.2 IN CRL./A.NO.243/2007/STATE: ------------------------------------------------------------------------------------------------------- 1. BRAHAMANDAN N., VALAVIL HOUSE, CHAVARA MURI, KARUNAGAPPALLY TALUK, KOLLAM DISTRICT-691 001. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT. SUMANGALA P.N. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------------------ Crl.R.P. No. 2852 of 2010 ---------------------------------------- Dated the 29th Day of September, 2010 ORDER The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the revision petitioner as she is aggrieved by the conviction and sentence imposed against him as per the impugned judgment. 2. The case of the complainant is that the accused borrowed an amount of Rs.1,00,000/- from the complainant and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 23.12.2002 which when presented for encashment, dishonoured as there was no sufficient fund in the account maintained by the accused and the revision petitioner/accused miserably failed to repay the cheque amount in spite of a formal notice caused to issue by him. With the said allegation, the complainant approached the court Judicial First Class Magistrate, Karunagappally by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and CRL.R.P 2852/10 -:2:- instituted C.C.No.1632/2003. During the course of trial, the complainant himself mounted to the box and adduced oral evidence as PW1. He has also produced Exts.P1 to P5 as documentary evidence. From the side of the defence, no evidence, either oral or documentary was produced. After evaluation of the evidence and the materials on record, the trial court has found that Ext.P1 cheque was issued towards the discharge of a legally enforceable debt that due to the complainant and accordingly, the trial court held that the complainant has succeeded in establishing the allegation against the revision petitioner-accused and found that the revision petitioner-accused is guilty. Consequently, the accused is convicted under section 138 of the N.I.Act. On such conviction, the trial court sentenced the revision petitioner-accused to undergo simple imprisonment for a period of three months and to pay compensation of Rs.1,00,000/- to the complainant under section 357(3) Cr.P.C. The default sentence is fixed as simple imprisonment for a period of one month. 3. Aggrieved by the above order of conviction and CRL.R.P 2852/10 -:3:- sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 29.6.2010 in Crl.A.No. 243/20097, the court of I Addl. Sessions Judge, Kollam allowed the appeal only in part. Thus while confirming the conviction, the sentence is modified and the revision petitioner is directed to undergo simple imprisonment till rising of the court and to pay a fine of Rs.1,05,000/-. the default sentence is fixed as simple imprisonment or one month. It is also ordered that if the fine amount is realised, the same shall be given to the complainant as compensation. It is the above judgments of the trial court as well as the lower appellate court challenged in this Crl.R.P. 4. Reiterating the contention taken by the defence during the trial and appellate stages, the learned counsel submitted that the complainant has not established the transaction, execution and issuance of the cheque and therefore, the courts below are absolutely wrong in convicting the revision petitioner-accused imposing sentence against him. The trial court as well as the lower CRL.R.P 2852/10 -:4:- appellate court has concurrently found in favour of the complainant and against the revision petitioner-accused. Though the revision petitioner is heard elaborately, nothing is brought out to take a different view to interfere with the concurrent findings of the courts below. All the contentions are based upon the facts and evidence on record which were elaborately considered by the courts below. Therefore, I find no reason to interfere with such concurrent finding of the courts below and accordingly, the conviction recorded by the courts below is confirmed. 5. As this court is not inclined to interfere with the order of conviction, the counsel submitted that the sentence of imprisonment may be set aside and a breathing time may be granted to the revision petitioner to pay the compensation amount, which submission, according to me, can be considered positively. The cheque in question is dated 23.10.2002, that too for an amount of Rs.1,00,000/-. Thus as per the record and finding of the courts below, which upheld by this court, the said amount is with the revision petitioner for the last CRL.R.P 2852/10 -:5:- 8 years. 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 a case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. Therefore, considering the above facts and legal position, I am of the view that the sentence of imprisonment can be confined to fine alone and the fine amount can be enhanced slightly. In the result, this Crl.R.P is disposed of confirming the conviction of the revision petitioner recorded by the courts below for the offence under section 138 of the N.I.Act. Accordingly, the sentence of imprisonment ordered by the trial court and modified and refixed by the appellate court is set aside. Accordingly, the sentence is confined to fine only and thus the revision petitioner is sentenced to pay a fine of Rs.1,40,000/- within three months from today, and he is directed to deposit the said amount on or before 29.12.2010. In case of any default in paying the above amount within the stipulated time, the revision petitioner is directed to undergo simple CRL.R.P 2852/10 -:6:- imprisonment for three months. On realisation of the fine amount, a sum of Rs.1,35,000/-(Rs.one lakh and thirty five thousand only) shall be paid to the complainant as compensation under section 357(1)(b) and the remaining amount shall be deposited in the State Exchequer. If there is any default on the part of the revision petitioner in depositing the fine amount, the trial court is free to take coercive steps against the revision petitioner to secure his presence and to execute the sentence and for realisation of the fine amount. Coercive steps, if any, pending shall be deferred till 29.12.2010. This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/-