IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 21ST JUNE 2010 / 31ST JYAISTHA 1932 Crl.Rev.Pet.No. 1858 of 2010() ------------------------------ CRA.555/2009 of ADDL. DISTRICT & SESSIONS JUDGE, ADHOC-III, N.PARAVUR ST.4027/2006 of JUDICIAL MAGISTRATE OF FIRAST CLASS - II, PARAVUR .................... REVN. PETITIONER: ACCUSED ---------------------------- SUDHEER, AGED 40 YEARS, S/O.ARAVINDAKSHAN, KAMALALAYAM, KADASSERYPARAMBIL, KIZHAKKEPRAM, KOTTUVALLY VILLAGE, N.PARAVUR. BY ADV. SRI.ASHIK K.MOHAMMED ALI RESPONDENTS: COMPLAINANT & STATE ---------------------------------- 1. K.M.VENU, S/O.MADHAVAN, KALATHILVEEDU, PARAVOOTHARA KARA, N.PARAVUR.P.O. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY P.P. SMT. PUSHPALATHA M.K. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.R.P. No. 1858 of 2010 ---------------------------------------- Dated the 21st Day of June, 2010 ORDER This Crl.Revision Petition is preferred by the accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act as he is aggrieved by the order of conviction and sentence imposed against him. 2. The case of the complainant is that the revision petitioner/accused, who is a friend of the complainant, borrowed a sum of Rs. 1,14,000/- and towards the discharge of the said liability, the accused issued a cheque, which when presented for encashment, dishonoured as there was no sufficient fund in the account maintained by the revision petitioner- accused and he has not paid the cheque amount in spite of lawyer notice sent to him demanding for the same and, therefore, the revision petitioner has committed the offence punishable under section 138 of the NI Act. With the said allegation, a formal complaint was filed before the Judicial First Class Magistrate-II, North Crl.R.P.1858/10 -:2:- Paravur, based upon which, cognizance was taken for the offence under section 138 of the Act and instituted S.T.No.4027/2006. During the trial of the case, the complainant was examined as PW1 and produced Exts.P1 to P9 documents. From the side of the defence, no evidence, either documentary or oral, was produced. On the basis of the evidence on record, the trial court found that the complainant has succeeded in establishing that the accused borrowed a sum of Rs.1,14,000/- and in discharge of the said debt, he issued Ext.P1 cheque from his account. Accordingly, the trial court found the revision petitioner- accused guilty for the charge levelled against him and, accordingly, he is sentenced to undergo simple imprisonment for 3 months and also directed to pay a fine of Rs.1,14,000/-. The default sentence fixed is simple imprisonment for 3 months. It is also ordered that on realisation of the fine amount, the whole amount shall be paid to the complainant as compensation under section 357(1) Cr.P.C. Challenging the conviction and order of sentence, the revision petitioner Crl.R.P.1858/10 -:3:- had filed appeal as Crl.A.No.555/2009 and the court of Addl.District and Sessions Judge, (Adhoc-III), North Paravur by judgment dated 17.3.2010, dismissed the appeal confirming the conviction and sentence. It is the above finding, conviction and sentence challenged in this Crl.Revision petition. 3. I have heard the learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. 4. The learned counsel appearing for the revision petitioner submitted that the revision petitioner-accused denied execution of the cheque in question and therefore, it is incumbent upon the complainant to prove the execution of the cheque and on failure on the part of the complainant to establish the execution of the cheque, no presumption can be drawn under section 139 of the N.I.Act in favour of the complainant. It is also the contention of the learned counsel that the court below has no pecuniary jurisdiction to impose fine exceeding Rs.10,000/- in view of Section 29 Cr.P.C. Crl.R.P.1858/10 -:4:- 5. On a careful consideration of the arguments advanced by the learned counsel and also on perusal of the judgments of the courts below, it appears that though the revision petitioner/accused has taken a plea, to the effect that the cheque in question was not entrusted with the complainant and that the brother of the complainant misappropriated one cheque belonging to the accused from the house of the accused and Ext.P1 is the said cheque, the same is not substantiated. A mere denial of execution of the cheque is not sufficient to discharge the burden of the accused in an offence under section 138 of the Act for rebutting the presumption. The complainant has produced the cheque in question from his possession and In the absence of any contra evidence regarding the transaction, the complainant is entitled to get presumption under section 139 of the Act. The trial court as will as the lower appellate court, after having considered the entire materials and evidence on record, has concurrently found that the complainant has established his case against the revision petitioner. On the Crl.R.P.1858/10 -:5:- other hand, the revision petitioner has miserably failed to rebut the presumption. Hence, I find no reason to interfere with the said concurrent finding of the courts below. 6. The learned counsel for the revision petitioner submitted that the substantial sentence may be reduced and sufficient time may be granted to the revision petitioner to raise the fine amount and to make the payment. 7. I have carefully considered the above submission of the learned counsel. Considering the facts and circumstances involved in this case, I am of the view that such submission can be considered favourably, but at the same time, it is to be noted that the cheque in question is dated 31.1.2006 and that too for an amount of Rs.1,14,000/- which is due from the revision petitioner to the complainant. Though the cheque is dated 31.1.2006 and though the date of the trial court judgment and lower appellate court judgments respectively are 17.7.2009 and 17.3.2010, so far, no amount is paid to the complainant. The Apex Court, in Damodar S.Prabhu v. Sayed Babalal H (JT 2010 (4) SC 457), has Crl.R.P.1858/10 -:6:- held that in a case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. In the light of the above facts and circumstance and the settled legal position, I am of the view that the substantive sentence imposed against the revision petitioner can be reduced to imprisonment till the rising of the court and the revision petitioner can be sentenced to pay fine and the amount can be enhanced and fixed as Rs.1,25,000/- and on failure to pay fine amount, the default sentence can be fixed as six months simple imprisonment. 8. In the result, this Crl.R.P is disposed of confirming the conviction of the revision petitioner under section 138 of the Negotiable Instruments Act as recorded by the trial court as well as the lower appellate court. Accordingly, the revision petitioner is sentenced to undergo simple imprisonment till the rising of the court and he is also sentenced to pay a fine of Rs.1,25,000/- and on failure to pay the fine amount, he is directed to undergo simple imprisonment for a period of six months. On realisation of the fine amount, the same shall Crl.R.P.1858/10 -:7:- be paid to the complainant as compensation under section 357 (1)(b) Cr.P.C. Accordingly, the revision petitioner is directed to appear before the trial court on 22nd September, 2010 to receive the sentence and to make the payment. If there is any failure on the part of the revision petitioner in appearing before the trial court as directed above, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence. V.K.MOHANAN, JUDGE kvm/- Crl.R.P.1858/10 -:8:- O.P.No. JUDGMENT Dated:..