IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 30TH JULY 2010 / 8TH SRAVANA 1932 Crl.Rev.Pet.No. 2295 of 2010() ------------------------------------------------- CRA.530/2006 of I ADDL. SESSIONS COURT, KOLLAM CC.541/2003 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOLLAM .................................. REVN. PETITIONER(S): APPELLANT/ACCUSED: ------------------------------------------------------------------------- SATHYASEELAN,E.S.I.QUARTERS, PERUMPUZHA.P.O, KERALAPURAM, KOLLAM. BY ADV. MR.S.SANTHOSH KUMAR SMT.P.LISSY JOSE. RESPONDENT(S): COMPLAINANT AND STATE: ------------------------------------------------------------------------- 1.THE STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN-31. 2.RADHAKRISHNAN,THULASI BHAVANAM, NORTH MYLAKADU, KANNANALLOOR.P.O, KOLLAM-673 307. PUBLIC PROSECUTOR MR. VENUGOPAL M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2295 of 2010 ------------------------------------------------- Dated this the 30th day of July, 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 against him by the courts below. 2. The case of the complainant is that the accused/revision petitioner, towards the discharge of a debt due to the complainant/2nd respondent, issued a cheque dated 30.01.2003 for a sum of Rs.75,000/- (Rupees Seventy five thousand only) which when presented for encashment dishonoured as there was “no sufficient funds” 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 same Crl. R.P.No.2295/2010 2 allegation, the complainant approached the Judicial First Class Magistrate Court-II, Kollam in C.C.No.541/2003 by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act. During the trial of the case, PW1 was examined from the side of the complainant and Exts.P1 to P6 were marked. From the side of the defence, Dw1 was examined and Ext.D1 was marked. 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/2nd respondent. 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 Crl. R.P.No.2295/2010 3 trial court sentenced the revision petitioner/appellant to undergo simple imprisonment for 6 months and also ordered to pay a compensation of Rs.75,000/- (Rupees Seventy five thousand only) to the complainant/2nd respondent u/s.357(3) of Cr.P.C and the default sentence is fixed as simple imprisonment for 3 months. 3. Aggrieved by the above order of conviction and sentence, the revision petitioner had approached the court below by filing an appeal. But by judgment dated 06.04.2010 in Crl.A.No.530/2006, the Court of Ist Addl. Sessions Judge, Kollam, allowed the appeal only in part and thus while confirming the conviction, the sentence is modified and reduced till raising of the court and also ordered to pay a compensation of Rs.75,000/- to the complainant/2nd respondent. Default sentence is fixed as 3 months simple imprisonment. 4. I have heard the learned counsel appearing for Crl. R.P.No.2295/2010 4 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. The counsel for the revision petitioner submitted that sentence imposed by the courts below is highly exorbitant and unreasonable. It is also submitted that some breathing time may be granted to the revision Crl. R.P.No.2295/2010 5 petitioner to pay the compensation amount. 7. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered positively. The cheque in question is dated 30.01.2003 that too for an amount of Rs.75,000/- and especially the fact that the cheque is pertinent to the year 2005. Considering the above facts and circumstances, I am of the view that while granting some time, the compensation amount can be enhanced slightly. 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 result, this revision petition is disposed of confirming the conviction against the revision petitioner u/s.138 of Negotiable Instruments Act as recorded by Crl. R.P.No.2295/2010 6 the trial court as well as the lower appellate court. Accordingly, the sentence of imprisonment ordered by the lower appellate court against the revision petitioner is confirmed and the revision petitioner is directed to pay a sum of Rs.85,000/- (Rupees Eighty five thousand only) to the complainant as compensation u/s.357(3) of Cr.P.C within 3 months from today and in default he is directed to undergo simple imprisonment for a period of 3 months. The revision petitioner is free to pay the compensation amount, as ordered by this court, either directly to the complainant or by remitting the same in the trial court which ever subject to the satisfaction of the trial court. The revision petitioner is directed to appear before the trial court on 30.10.2010 to receive the sentence and to pay the compensation. In case of any failure, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to Crl. R.P.No.2295/2010 7 execute the sentence awarded against the revision petitioner. Criminal revision petition is disposed of accordingly. Sd/- V.K.MOHANAN, Judge. ss/ // True copy// P.A to Judge