IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 17TH SEPTEMBER 2010 / 26TH BHADRA 1932 Crl.Rev.Pet.No. 1788 of 2010(C) -------------------------------------------- [CRL.A.NO.39/2009 OF THE IV ADDL.SESSIONS COURT, ERNAKULAM, CC.NO.715/2006 OF ADDL.CHIEF JUDICIAL MAGISTRATE, ECONOMIC OFFENCES,ERNAKULAM] .................... REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------------- K.X.ALOSIUS, AGED 48 YEARS, S/O.LATE XAVIER, KOMARANCHATH HOUSE, BOAT JETTY ROAD, VADUTHALA.P.O, KOCHI-23. BY ADV. SRI.T.R.MADHU. RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: ----------------------------------------------------------------------------------- 1. C.B.FRANCIS, S/O.C.C.BAVOO, CHIRACKAL PARAMBIL (EFFIL TOWERS), CHURCH ROAD, S.CHITTOOR.P.O, ERNAKULAM, KOCHI. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. R1 BY ADVS. SRI.P.K.BALAKRISHNAN NAIR, SRI.K.V.JAYADEEP MENON, SMT.P.KRISHNAPRIYA, R2 BY PUBLIC PROSECUTOR SMT. SUMANGALA.P.N. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. V.K.MOHANAN, J. ------------------------------------------ Crl.R.P. No. 1788 of 2010 ---------------------------------------- Dated the 17th Day of September 2010 ORDER The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the revision petitioner as he is aggrieved by the conviction and sentence imposed against him as per the impugned judgment. 2. The case of the complainant is that towards the discharge of a legally enforceable debt due to the complainant for an amount of Rs.1,82,000/-, the accused issued Ext.P2 cheque dated 14.3.2005 for the said amount which when presented for encashment, dishonoured stating the reason “account closed” and the revision petitioner/accused miserably failed to repay the cheque amount in spite of a formal notice caused to issue by him. With the said allegation, the complainant initially approached the court of Judicial First Class Magistrate-I, Ernakulam by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted C.C.No. 649/2005 and later it was made over to the Addl.Chief Judicial Magistrate (Economic offences), Ernakulam, and the case was renumbered as C.C.No.715/2006. During the course of trial, the complainant CRL.R.P.1788/10 -:2:- himself mounted to the box and adduced oral evidence as PW1. He has also produced Exts.P1 to P6 as documentary evidence. From the side of the defence, DW1 was examined and produced and marked Ext.D1. After evaluation of the evidence and the materials on record, the trial court has found that Ext.P2 cheque was issued towards the discharge of a legally enforceable debt that due to the complainant and accordingly, the trial court held that the complainant has succeeded in establishing the allegation against the revision petitioner-accused and found that the revision petitioner-accused is guilty. Consequently, the accused is convicted under section 138 of the N.I.Act. On such conviction, the trial court sentenced the revision petitioner-accused to undergo simple imprisonment for one month and also to pay a fine of Rs.1,82,000/-, in default, he is directed to undergo simple imprisonment for a further period of three months. It is also ordered that on realisation of the fine amount, the same shall be paid as compensation to the complainant under section 357(1) Cr.P.C. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 23.11.2009 in Crl.A.No.39/2009, the court of IV Addl. Sessions Judge, Ernakulam, dismissed the appeal CRL.R.P.1788/10 -:3:- confirming the conviction and sentence. It is the above judgments of the trial court as well as the lower appellate court challenged in this Crl.R.P. 3. Reiterating the contention taken by the defence during the trial and appellate stages, the learned counsel submitted that the complainant has not established the transaction, execution and issuance of the cheque and therefore, the courts below are absolutely wrong in convicting the revision petitioner-accused imposing sentence against him. The trial court as well as the lower appellate court has concurrently found in favour of the complainant and against the revision petitioner-accused. Though the revision petitioner is heard elaborately, nothing is brought out to take a different view by interfering with the concurrent findings of the courts below. All the contentions are based upon the facts and evidence on record which were elaborately considered by the courts below. Therefore, I find no reason to interfere with such concurrent finding of the courts below and accordingly, the conviction recorded by the courts below is confirmed. 4. As this court is not inclined to interfere with the order of conviction, the learned counsel for the revision petitioner submitted that the sentence of imprisonment imposed by the CRL.R.P.1788/10 -:4:- courts below is exorbitant and unreasonable and the same may be set aside and also submitted that a breathing time may be granted to the revision petitioner to pay the fine amount. 5. 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 inputs in this case. As per the records , the cheque in question is dated 14.3.2005, that too for an amount of Rs.1,82,000/- and as per the findings of the courts below which approved by this court, a sum of Rs.1,82,000/- is due to the complainant , at least from the date of the cheque, i.e., 14.3.2005. The Apex Court, in its recent decision in Damodar S.Prabhu v. Sayed Babalal H (J.T.2010 (4) SC 457), has held that in a case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. Having regard to the facts referred to above and the settled legal position, I am of the view that the sentence of imprisonment imposed upon the revision petitioner can be reduced to simple imprisonment till the rising of the court and while granting some time to deposit the fine amount, the CRL.R.P.1788/10 -:5:- amount can be enhanced slightly. In the result, this Crl.R.P is disposed of confirming the conviction recorded by the courts below for the offence under section 138 of the N.I.Act and the sentence of imprisonment ordered by the courts below is modified and reduced to one day till the rising of the court and while maintaining the sentence to pay fine, the fine amount is enhanced to Rs.2,00,000/- (Rs. two lakhs only) which shall be deposited within three months from today. In case of any default in paying the fine amount, the revision petitioner is directed to undergo simple imprisonment for a period of three months. Accordingly, the revision petitioner is directed to appear before the trial court on 18th December, 2010 to receive the above modified sentence and to deposit the fine amount. On depositing the fine amount, a sum of Rs.1,95,000/- shall be paid to the complainant as compensation under section 357(1)(b) Cr.P.C. The remaining amount shall be deposited into the State Ex chequer. If there is any default 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 against the revision petitioner to secure his presence and to execute the sentence and for CRL.R.P.1788/10 -:6:- realisation of the fine amount. Coercive step if any pending against the revision petitioner shall be deferred till 18.12.2010. This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- CRL.R.P.1788/10 -:7:-