IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 11TH OCTOBER 2010 / 19TH ASWINA 1932 Crl.Rev.Pet.No. 2949 of 2010 () ------------------------------ (CRA.635/2008 of ADDL. SESSIONS COURT-I, (ADHOC), THRISSUR ST.2587/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT, VADAKKANCHERY .................... REVN. PETITIONER/APPELLANT/ACCUSED --------------------------------------------------------------- KANNAN, S/O.P.NATARAJAN, THERUVIL HOUSE, KUTHAMPULLY, KANIYARKODE, THIRUVILLAMALA, THRISSUR DISTRICT. BY ADVS. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENTS/RESPONDENTS/ COMPLAINANT & STATE ------------------------------------------------------------------------------------ 1. RENJITHKUMAR, S/O.ARUMUKHAN, KUTHAMPULLY HOUSE, KANIYARKODE, THIRUVILLAMALA, THRISSUR DISTRICT. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR, SRI.V.TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2949 of 2010 ------------------------------- Dated this the 11th 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, towards the discharge of the liability due to the complainant, the accused issued a cheque dated 20.3.2006 for a sum of Rs.1,25,000/-, which when presented for encashment dishonoured on the ground that “account closed” and a formal demand notice was issued by the complainant, which was accepted by the accused and directly paid a sum of Rs.10,000/- to the complainant by the accused. For the balance amount of Rs.1,15,000/- the accused issued a cheque dated 28.6.2006, which was dishonoured when presented for encashment, for the reason “account closed” and the said cheque amount was not repaid by the accused inspite 2 Crl. R.P.No.2949 of 2010 of a formal demand notice and thus the accused/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- Wadakkanchery, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.2587/06. During the trial of the case, PW1, the complainant himself was examined from the side of the complainant and Exts.P1 to P9 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 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 3 Crl. R.P.No.2949 of 2010 the revision petitioner to undergo simple imprisonment for 3 months and also ordered the revision petitioner to pay a fine of Rs.1,15,000/-, failing which the revision petitioner was directed to undergo simple imprisonment for 1 month. It is also ordered that on realisation of the fine amount, the same shall be paid to PW1's son 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 20.7.2010 in Crl.A.635/08, the Court of Addl. District & Sessions Judge (Fast Track)-I, Thrissur, dismissed the appeal, confirming the conviction and sentence imposed against the accused by the trial court. 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.2949 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 conviction recorded by the courts below, the learned counsel for the revision petitioner submitted that the sentence of imprisonment imposed against the revision petitioner is unreasonable and exorbitant and the same require to be set aside and also further 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 other facts and circumstances involved in the case. 7. The apex court in a recent decision reported in 5 Crl. R.P.No.2949 of 2010 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 20.3.2006 and the balance amount payable is Rs.1,15,000/- as per the findings of the courts below,which approved by this court. Considering the above facts and settled legal position, I am of the view that the sentence of imprisonment ordered against the revision petitioner can be modified and reduced and while granting some time to the revision petitioner to pay the fine amount, the 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, the sentence of imprisonment awarded by the courts below is modified and reduced to one day simple imprisonment ie., till the rising of the court. Accordingly, while 6 Crl. R.P.No.2949 of 2010 confirming the sentence to pay fine, the fine amount is enhanced to the tune of Rs.1,38,000/-, within 3 months from today and in case of default in paying the fine amount within the stipulated time, 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 11.1.2011, to receive the sentence of imprisonment and to pay the fine amount as directed by this court. On realisation of the fine amount, a sum of Rs.1,35,000/- 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. The execution of warrant if any, pending against the revision petitioner shall be deferred till 11.1.2011. 7 Crl. R.P.No.2949 of 2010 Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/