IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 19TH AUGUST 2010 / 28TH SRAVANA 1932 Crl.Rev.Pet.No. 2499 of 2010() ------------------------------ CRA.148/2006 of ADDL. DISTRICT AND SESSIONS COURT (ADHOC-III), KASARAGOD. CC.617/2005 of JUDICIAL FIRST CLASS MAGISTRATE COURT II, KASARAGOD. .................... PETITIONER(S): APPELLANT-ACCUSED: ------------------------------------------------------------- JAMES ABRAHAM, S/O.ABRAHAM, PALLATTUKAVIL FASHION JEWELLERS, NEAR SYNDICATE BANK, POST, HOSANGADI, KASARAGOD TALUK & DISTRICT. BY ADV. SRI.MATHEW JOHN (K) RESPONDENT(S): RESPONDENTS/COMPLAINANT AND NOT PARTY: ------------------------------------------------------------------------------------------------------ 1. SATHYAN T.V., S/O.A.V.AMBU, NAYAMMARMOOLA, VIDYANAGAR, CHENGALA VILLAGE, KASARAGOD TALUK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. VENUGOPAL M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2499 of 2010 ------------------------------- Dated this the 19th day of August, 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.33,000/- from the complainant and towards the discharge of the debt due to the complainant, he issued a cheque dated 28.2.2004, for a sum of Rs.33,000/-, 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 complainant approached the Judl. First Class Magistrate Court-II, Kasaragod, by filing a formal Crl. R.P.No.2499 of 2010 2 complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.617/05. During the trial of the case, PW1, the complainant himself was examined from the side of the complainant and Exts.P1 to P6 were marked. No oral or documentary evidence 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 2 months and to pay a compensation of Rs.33,000/- u/s.357(3) of Cr.P.C. and the default sentence was fixed as 1 month simple imprisonment. 3. Though an appeal was filed, at the instance of the Crl. R.P.No.2499 of 2010 3 revision petitioner/accused, by judgment dated 19.12.2009 in Crl.A.148/06, the Court of Addl. District & Sessions Judge (Ad hoc-III), Kasaragod, dismissed the appeal, confirming the conviction and sentence of the revision petitioner u/s.138 of Negotiable Instruments Act. 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. Crl. R.P.No.2499 of 2010 4 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 ordered by the courts below is unreasonable and exorbitant and the same may be set aside and further submitted that, some breathing time may be granted to deposit the compensation amount. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered but subject to other relevant facts and circumstances involved in the case. 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 over the punitive aspects. In the present case, the cheque in question is dated 28.2.2004, for an amount of Rs.33,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.33,000/-, which belonged to the Crl. R.P.No.2499 of 2010 5 complainant is with the revision petitioner for the last 6 years. Therefore, considering the above facts and the settled legal position, I am of the view that, the sentence of imprisonment ordered by the courts below, can be modified and at the same time, the revision petitioner can be granted some time to pay the compensation amount but subject to slight enhancement with respect to the compensation amount, considering the fact that the amount was due from 2004 onwards. 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, the sentence of imprisonment ordered by the courts below is modified and reduced to one day simple imprisonment ie., till the rising of the court and the revision petitioner is directed to pay a compensation of Rs.37,000/- to the complainant u/s.357 (3) of Cr.P.C., within 3 months from today and in case of default in paying the compensation amount, the revision petitioner is directed to undergo simple imprisonment for 3 months. Crl. R.P.No.2499 of 2010 6 Accordingly, the revision petitioner is directed to appear before the trial court on 16.11.2010, to receive the sentence of imprisonment and to pay the compensation amount, as fixed by this court. In case any failure on the part of the revision petitioner in appearing before the court below as directed above and in making the payment of compensation 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. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/