IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 24TH SEPTEMBER 2010 / 2ND ASWINA 1932 Crl.Rev.Pet.No. 2625 of 2010(C) -------------------------------------------- [CRL.A.NO.696/2004 OF ADDL.SESSIONS COURT (FAST TRACK COURT III), THIRUVANANTHAPURAM, CC.NO.287/2003 OF JUDL.MAGISTRATE OF FIRST CLASS COURT-V, (SPECIAL COURT FOR MARKLIST CASES) THIRUVANANTHAPURAM] .................... REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------------- G.GOPALAKRISHNAN, S/O.N.GOVINDAN, USHA MANDIRAM, VETTUROAD P.O., KANIYAPURAM, THIRUVANANTHAPURAM. BY ADV. SRI.K.P.SUJESH KUMAR. RESPONDENTS/RESPONDENTS/STATE & COMPLAINANT: ----------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. M.A.HAMEED, S/O.MOHAMMED SHERIF, POURNAMI, PERUMATHURA P.O., THIRUVANANTHAPURAM. R1 BY PUBLIC PROSECUTOR SRI. V. TEK CHAND. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2625 of 2010 ------------------------------- Dated this the 24th day of September, 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, the accused/ revision petitioner borrowed a sum of Rs.50,000/- and towards the discharge of the said liability, the accused issued a cheque dated 29.4.2002 for a sum of Rs.50,000/-, which when presented for encashment dishonoured, as there was no sufficient fund 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 said allegation, the complainant approached the Judl. First Class Magistrate Court- V, (Special Court for Mark list cases), Thiruvananthapuram, by filing a formal complaint, upon which cognizance was taken 2 Crl. R.P.No.2625 of 2010 u/s.138 of Negotiable Instruments Act and instituted C.C.No.287/03. During the trial of the case, PW1, the complainant himself was examined from the side of the complainant and Exts.P1 to P5 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 the revision petitioner to undergo simple imprisonment for 4 months and also ordered the revision petitioner, to pay a sum of Rs.50,000/- to the complainant as compensation u/s.357(3) of Cr.P.C., which on deposit in court shall be given to the complainant, failing which the revision petitioner was directed to 3 Crl. R.P.No.2625 of 2010 undergo simple imprisonment for 1 month. 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 22.4.2010 in Crl.A.696/04, the Court of Addl. Sessions Judge, Fast Track Court-III, Thiruvananthapuram, allowed the appeal only in part, confirming the conviction but the sentence imposed against the accused is modified and reduced to till the rising of the court and sentenced to pay compensation of Rs.50,000/- to the complainant u/s.357(3) of Cr.P.C. and in default to undergo simple imprisonment for 1 month. It is also ordered that the revision petitioner shall appear before the trial court on 26.6.2010 to receive the sentence. 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.2625 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, some breathing time may be granted to pay the compensation amount. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered but subject to other inputs 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 5 Crl. R.P.No.2625 of 2010 aspects. In the present case, the cheque in question is dated 29.4.2002, that too for an amount of Rs.50,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.50,000/- which belonged to the complainant is in the hands of the revision petitioner for the last 8 years. 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 maintained and some time can be granted to the revision petitioner to pay the compensation amount. 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 confirming the sentence of imprisonment ordered by the appellate court and also the direction to pay the compensation amount, the revision petitioner is granted 45 days time to pay the compensation amount and the default sentence fixed by the lower appellate court will be attracted only when the 6 Crl. R.P.No.2625 of 2010 revision petitioner makes any failure in paying the compensation amount within 45 days from today. Accordingly, the revision petitioner is directed to appear before the trial court on 8.11.2010, to receive the sentence of imprisonment and to pay the compensation amount as directed by this court. In case, any failure on the part of the revision petitioner in appearing before the court below as directed above and in paying the compensation 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 8.11.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/