IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 6TH OCTOBER 2010 / 14TH ASWINA 1932 Crl.Rev.Pet.No. 1840 of 2010() ------------------------------------------ CRA.355/2009 of ADDL.SESSIONS COURT, (ADHOC-I), ERNAKULAM CC.566/1999 of JUDL.MAGISTRATE OF FIRST CLASS, KOLENCHERRY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ----------------------------------------------------------------- A.BHASKARAN, AGED 63 YEARS, DESPATCH CLERK, CENTRAL FILED DEPARTMENT, COCHIN REFINERIES LIMITED, AMBALAMUGAL P.O., NOW RESIDING AT JRWA 35/5 OMANA VIHAR, JANATHA ROAD, VYTTILLA, KOCHI. BY ADV. SRI.S.RAJEEV RESPONDENT(S): COMPLAINANTS & STATE ---------------------------------------------------------------- 1. K.P.RAMACHANDRAN, S/O.K.PERUMAL, QUARTER NO.101 C, COCHIN REFINERIES LIMITED, AMBALAMUGAL P.O. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.P.N.SUMANGALA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1840 of 2010 ------------------------------- Dated this the 6th 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 the accused/revision petitioner borrowed a sum of Rs.1,47,000/- from the complainant and towards the discharge of the debt due to the complainant, he issued a cheque dated 12.3.1999 for a sum of Rs.1,47,000/-, 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-Kolencherry, by filing a formal complaint, upon which cognizance was taken u/s.138 of 2 Crl. R.P.No.1840 of 2010 Negotiable Instruments Act and instituted C.C.No.566/99. During the trial of the case, Pws.1 and 2 were examined and Exts.P1 to P6 were marked, from the side of the complainant. From the side of the defence Dws.1 and 2 were examined and Ext.D1 was also produced and 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. 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 3 months and to pay a compensation of Rs.1,47,000/- to the complainant and the default sentence was fixed as 2 months simple imprisonment. 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 27.2.2010 in 3 Crl. R.P.No.1840 of 2010 Crl.A.355/09, the Court of Addl. Sessions Judge (Ad hoc)-I, Ernakulam, dismissed the appeal, subject to modification in the sentence. Thus while confirming the conviction, the sentence of imprisonment imposed against the revision petitioner is reduced to till the rising of the court and instead of a direction to pay compensation, the appellate court sentenced the revision petitioner to pay a fine of Rs.1,50,000/- and in default to undergo simple imprisonment for 2 months. It is also ordered that on realisation of the fine amount, the entire amount shall be paid to the complainant as compensation u/s.357(1) of Cr.P.C. The revision petitioner was also directed to appear before the trial court on 22.5.2010. 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.1840 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 order of conviction recorded by the courts below, the counsel for the revision petitioner submitted that, some breathing time may be granted to pay the amount and the order of learned Magistrate to pay compensation may be restored, since the appellate court has no jurisdiction to impose fine exceeding Rs.5,000/-, as the alleged offence was taken place prior to the amendment brought to the NI Act. 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 slight enhancement with respect to the compensation amount. 5 Crl. R.P.No.1840 of 2010 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 aspects. In the present case, the cheque in question is dated 12.3.1999, for an amount of Rs.1,47,000/-. Thus as per the records and the findings of the courts below, and approved by this court, a sum of Rs.1,47,000/-, which belonged to the complainant is with the revision petitioner for the last 11 years. So, while granting some time to pay the compensation amount, the same 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, while maintaining the sentence of imprisonment as modified and refixed by the appellate court, by setting aside the order of the appellate court directing the revision petitioner to pay fine, the revision petitioner is directed to pay a sum of 6 Crl. R.P.No.1840 of 2010 Rs.1,50,000/- as compensation to the complainant u/s.357(3) of Cr.P.C., within 45 days from today and in case of any default in paying the compensation amount, 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 22.11.2010, to receive the sentence of imprisonment and to pay the compensation amount, as fixed 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. Coercive steps if any, pending against the revision petitioner shall be deferred till 22.11.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/