IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 7TH JULY 2010 / 16TH ASHADHA 1932 Crl.Rev.Pet.No. 1948 of 2010() ------------------------------ CRA.118/2008 of III ADDL.SESSIONS COURT, KOLLAM ST.1127/2005 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOLLAM .................... REVISION PETITIONER/APPELLANT/ACCUSED :- --------------------------------------------------------------------- SOMARAJAN PILLAI S., KEDARAM (THOTTAMUGHAM VEEDU),PINACKAL CHERRY, THATTAMALA P.O., KOLLAM. BY ADV. SRI.SIJU KAMALASANAN SRI.A.MUHAMMED RAFFI RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE:- -------------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. S.KARUNAKARAN PILLAI,S/O.SIVARAMA PILLAI VATTAKKATTU VEEDU, VAZHAPPALLY, UMAYANALLOOR P.O., KOLLAM. PUBLIC PROSECUTOR MR.C.M.NAZAR FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt V.K.MOHANAN, J. ----------------------------- Crl.R.P.No.1948 of 2010 --------------------------------- Dated this the 7th day of July 2010 O R D E R The accused in a prosecution for an offence u/s.138 of the 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 towards the discharge of a debt due to the complainant, the accused issued a cheque dated 10.2.2005 for an amount of Rs.75,000/-, which when presented for encashment dishonoured for want of sufficient fund in the account maintained by the accused and the amount covered by the cheque was not repaid in spite of a formal demand notice and thus the revision petitioner has committed the offence punishable u/s.138 of the Negotiable Instruments Act. With Crl.R.P.No.1948 of 2010 : 2 : the said allegation, the complainant approached the Judicial First Class Magistrate-II, Kollam by filing a formal complaint, upon which cognizance was taken u/s.138 of the Negotiable Instruments Act and instituted S.T.No.1127/2005. During the course of the trial the complainant himself examined as PW1 and Exts.P1 to P6 were marked. 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 held 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 the Negotiable Instruments Act. On such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment for 65 days and also sentenced to pay a fine Crl.R.P.No.1948 of 2010 : 3 : of Rs.95,000/- and the default sentence is fixed as 65 days simple imprisonment. On realization of the fine amount, it is ordered that the same shall be paid to the complainant under Sec.357(3) of Cr.P.C. 3. In appeal, by judgment dated 14.1.2010 in Crl.A.No.118/2008, the court of IIIrd Addl.Sessions Judge, Kollam while confirming the conviction, the sentence was modified and accordingly the revision petitioner is sentenced to undergo imprisonment till the rising of the court and the fine amount was reduced to the tune of Rs.75,000/- and the default sentence is fixed as 2 months simple imprisonment. It is the above conviction and sentence are 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. The learned counsel for the revision petitioner submitted that a breathing time may be granted to the Crl.R.P.No.1948 of 2010 : 4 : revision petitioner to pay the fine amount and to receive the sentence. 6. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered favourably but subject to other relevant facts and circumstances involved in the case. In the present case, the cheque in question is dated 10.2.2005 for an amount of Rs.75,000/-. Thus, as per the records and findings of the courts below, which approved by this Court, an amount of Rs.75,000/- which belonged to the complainant is with the revision petitioner for the last 5 years. Thus on the basis of the above facts, the trial court has fixed the fine amount as Rs.95,000/- and also imposed a sentence of 65 days simple imprisonment. But the lower appellate court while reducing the sentence of imprisonment to till the rising of the court, the amount of fine is also reduced and fixed an amount equal to the cheque amount. Now the counsel for the revision petitioner Crl.R.P.No.1948 of 2010 : 5 : seeks time to pay the fine amount as ordered by the trial court. In Damodar.S.Prabhu v. Sayed Babalal.H [J.T. 2010 (4) SC 457] has held that in the case of dishonour of cheques, the compensatory aspect of the remedy shall be given preference than the punitive aspect. Therefore, while considering the above factual and legal position, I am of the view that while maintaining the sentence of imprisonment as ordered by the lower appellate court, the fine amount can be enhanced slightly. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner under Sec.138 of the N.I.Act as recorded by the courts below. Accordingly the revision petitioner is directed to undergo simple imprisonment till the rising of the court as ordered by the lower appellate court but he is sentenced to pay a fine of Rs.85,000/- within 3 months from today and in default in paying the amount he is directed to undergo simple imprisonment for a period of 2 months. Accordingly Crl.R.P.No.1948 of 2010 : 6 : the revision petitioner is directed to appear before the trial court on 7th October, 2010 to receive the sentence of imprisonment and to deposit the fine amount. On realization of the fine amount, the entire amount shall be paid to the complainant under Sec.357(1)(b) of Cr.P.C. In case any failure on the part of the revision petitioner in appearing before the court below as directed above and depositing 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. V.K.MOHANAN, JUDGE. Jvt