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. 2529 of 2010() ------------------------------ CRA.98/2008 of SESSIONS COURT, PATHANAMTHITTA ST.701/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT- II,PATHANAMTHITTA .................... REVN. PETITIONER(S): REVISION PETITIONER/APPELLANT/ACCUSED ---------------------------------------------------------- THAMPY ABRAHAM,S/O.ABRAHAM, KAITHAVANA HOUSE, KOZHENCHERRY P.O., PATHANAMTHITTA DISTRICT. BY ADV. SRI.ABRAHAM SAMSON SMT.LOVELY SAMSON RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. LENEY MATHEW S/O. K.M.MATHEW, MULAMOOTTIL THUNDIATHU HOUSE, MELUKARRA P.O., KOZHENCHERY TALUK, PATHANAMTHITTA DISTRICT. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 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: V.K.MOHANAN,J --------------------- Crl.R.P.No.2529 of 2010 ------------------------------------ Dated this the 19th day of August,2010 O R D E R The accused in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') approached this Court by preferring the above revision petition challenging his conviction and sentence, imposed as per judgments of the trial court as well as the lower appellate court. 2. The case of the respondent/complainant is that the accused/revision petitioner, towards the discharge of a debt due to the complainant, issued a cheque dated 01.11.2005 for a sum of Rs.1,28,000/- which, when presented for encashment, was dishonoured for want of sufficient fund in the account maintained by the revision petitioner and the petitioner failed to pay the cheque amount, even though he was requested for the same by issuing a statutory notice. With the said allegation, the complainant approached the Judicial First Class Magistrate Court-II, Pathanamthitta whereupon S.T.No.701/2006 was instituted taking cognizance for the offence under Section 138 of the N.I.Act. During the trial of the above case, the respondent/complainant adduced his evidence consisting of the Crl.R.P.No.2529 of 2010 2 documentary evidence such as Exts.P1 to P10(c) and the oral evidence of Pws.1 and 2. No evidence either oral or documentary was 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 courts held that, the complainant has established the case against the revision petitioner/accused and consequently, found that the accused is guilty and thus, he is convicted under Section 138 of the N.I.Act. On such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment for 3 months and to pay a compensation of Rs.1,28,000/- and the default sentence is fixed as one month simple imprisonment. 3. Though an appeal was filed against the above conviction and sentence, by the revision petitioner/accused, as per judgment dated 24.11.2009 in Crl.Appeal No.98/2008, the Court of Sessions Judge, Pathanamthitta allowed the appeal only in part and thus while confirming the conviction and sentence recorded by the court below under Section 138 of the Negotiable Instruments Act. It is the above conviction and sentence Crl.R.P.No.2529 of 2010 3 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. Sentence of imprisonment is modified and reducing to one day imprisonment and the revision petitioner is also directed to pay compensation of Rs.1,28,000/- to PW1 and the default sentence is fixed as simple imprisonment for a period of 3 months. 6. As this Court is not inclined to interfere with the conviction the counsel for the revision petitioner submitted that, some breathing time may be granted to the petitioner to deposit the compensation amount. I am of the view that the said Crl.R.P.No.2529 of 2010 4 submission can be considered but subject to other relevant materials 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 01.11.2005, for an amount of Rs.1,28,000/-. Thus as per the records and the findings of the courts below, which approved by this Court, a sum of Rs.1,28,000/-, which belonged to the complainant, is in the hands of the revision petitioner for the last 5 years. Therefore, while granting time to pay the compensation amount 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 lower appellate court, the revision petitioner is directed to pay a sum of Rs.1,33,000/- to the complainant as compensation under Section 357(3) of Cr.P.C. within 3 months from today and in case of default in paying the Crl.R.P.No.2529 of 2010 5 the compensation amount within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for 3 months. Accordingly, the revision petitioner/accused is directed to appear before the trial court on 16.11.2010 to receive the sentence and to deposit the compensation amount. In case any failure on the part of the revision petitioner in depositing the compensation amount in time 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. The execution of the warrant if any pending against the revision petitioner is referred till 16.11.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, JUDGE. pm