IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 5TH OCTOBER 2010 / 13TH ASWINA 1932 Crl.Rev.Pet.No. 2846 of 2010(A) ------------------------------------- (CRL.A. NO.435/2009 OF ADDITIONAL SESSIONS COURT, THRISSUR, (FAST TRACK COURT NO.II-ADHOC) S.T. NO.3943/2007 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, WADAKKANCHERY) ......... REVISION PETITIONER/APPELLANT/ACCUSED ------------------------------------------------------ PRAKASHAN, S/O.VELUKUTTY, KALLINKAL HOUSE, PARAMBOOR DESOM, CHOONDAL VILLAGE THALAPPILLY TALUK, THRISSUR DISTRICT. BY ADV. SRI.P.RAMACHANDRAN RESPONDENT(S): RESPONDENTS/COMPLAINANT --------------------------------------------------------- 1. KANNAN, S/O.MOHANAN, CHEMBAKASSERY HOUSE, MUNDATHIKODE DESOM, MUNDATHIKODE VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.P.N.SUMANGALA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 05/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SVS/ V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2846 of 2010 ------------------------------- Dated this the 5th day of October, 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 complainant and the accused are relatives and an amount of Rs.92,000/- was due to the complainant and towards the discharge of the said amount, the accused issued two cheques Exts.P1 and P1(a) and both the cheques are dated 22.9.2007 and each of the cheques was for Rs.46,000/-, 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 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 2 Crl. R.P.No.2846 of 2010 complainant approached the Judl. First Class Magistrate Court- Wadakkanchery, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.3943/07. During the trial of the case, the complainant himself was mounted to the box and gave evidence as PW1 and Exts.P1 to P7 were marked, from the side of the complainant. 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 3 months and to pay a fine of Rs.92,000/- and the default sentence is fixed as 1 3 Crl. R.P.No.2846 of 2010 month simple imprisonment. It is also ordered that if the fine amount is realised, the same shall be paid 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 14.6.2010 in Crl.A.435/09, the Court of Addl. Sessions Judge (Fast Track-II- Ad hoc) - Thrissur, allowed the appeal only in part and accordingly while confirming the conviction, the substantive sentence imposed against the revision petitioner is modified and reduced to imprisonment till the rising of the court and the direction to pay the fine amount and the default sentence are confirmed. 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 4 Crl. R.P.No.2846 of 2010 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, some breathing time may be granted to pay the 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 positively but subject to slight enhancement with respect to the fine amount. 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 compensatory aspect of the remedy should be given priority 5 Crl. R.P.No.2846 of 2010 over the punitive aspects. In the present case, the cheques in question were dated 22.9.2007, each for an amount of Rs.46,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a total sum of Rs.92,000/-, which belonged to the complainant is with the revision petitioner for the last 3 years. So, while granting some time to pay the fine amount, the same 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 maintaining the sentence of imprisonment as modified and fixed by the appellate court and also to pay fine, the fine amount is enhanced to the tune of Rs.1,05,500/-, which shall be deposited by the revision petitioner within 3 months from today and in default, the revision petitioner is directed to undergo simple imprisonment for 3 months. Accordingly, the revision petitioner is directed to appear before the trial court on 5.1.2011 to receive the sentence and to deposit the fine amount. 6 Crl. R.P.No.2846 of 2010 On realisation of the fine amount, a sum of Rs.1,00,000/- 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. In case any failure on the part of the revision petitioner in appearing before the court below as directed above and 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. Coercive steps if any, pending against the revision petitioner shall be deferred till 5.1.2011. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/