IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 2ND SEPTEMBER 2010 / 11TH BHADRA 1932 Crl.Rev.Pet.No. 2538 of 2010() ------------------------------ CRA.40/2009 of ADDL. SESSIONS COURT, (ADHOC)I, PALAKKAD ST.1493/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT-III, PALAKKAD .................... REVN. PETITIONER(S): REVISION PETITIONER/APPELLANT/ACCUSED: ----------------------------------------------------------- A.GOPALAKRISHNAN, S/O.AYYAMUTHU, AGED 46 YEARS, SHABARI NIVAS, KOSATHARA, AKATHETHARA, MALAMPUZHA, PALAKKAD DISTRICT. BY ADV. SRI.RAJESH SIVARAMANKUTTY RESPONDENT(S): COMPLAINANT & STATE: ----------------------------------------------------------------- 1. R.SETHUMADHAVAN, S/O.RAJAN.G., RAMLATH HOUSE, RAYAPPAN STREET, THATHAMANGALAM, CHITTUR TALUK, PALAKKAD DISTRICT. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT. SUMANGALA P.N. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2538 of 2010 ------------------------------- Dated this the 2nd 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, towards the discharge of a liability, the accused/revision petitioner issued a cheque dated 10.4.2007 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-III, Palakkad, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Crl. R.P.No.2538 of 2010 2 Act and instituted S.T.No.1493/07. During the trial of the case, PW1, the complainant himself was examined from the side of the complainant and Exts.P1 to P4 were marked. From the side of the defence Ext.D1 was marked and no oral evidence adduced. 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 pay a fine of Rs.50,000/- and the default sentence is fixed as one month simple imprisonment. It is also ordered that on realisation of the fine amount, the entire amount shall be given to the complainant. 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 30.4.2010 in Crl. R.P.No.2538 of 2010 3 Crl.A.40/09, the Court of Addl. Sessions Judge, Ad hoc-I, Palakkad, dismissed the appeal, confirming the conviction and sentence imposed against the revision petitioner u/s.138 of Negotiable Instruments Act. 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 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. 6. The learned counsel for the revision petitioner vehemently submitted that, absolutely there is no pleadings and evidence regarding the transaction and the execution and issuance of the cheque but the courts below miserably failed to Crl. R.P.No.2538 of 2010 4 consider the above aspects. It is also the contention of the learned counsel that till PW1 is confronted with Ext.D1, he had no case that there is transaction between the complainant and the wife of the revision petitioner. Ext.D1 complaint was preferred by the very same complainant in the present case, against the wife of the revision petitioner, wherein the cheque amount is also Rs.50,000/-. Thus according to the counsel for the revision petitioner, there was only one transaction between the complainant and the accused but the courts below miserably failed to consider the above aspect of the case of the complainant and also the defence put forwarded by the accused. 7. I am unable to sustain the above contention. As per the judgments of the courts below, Ext.P1 cheque which contain the signature of the revision petitioner and the cheque which pertained to the account of the revision petitioner, was produced from the possession of the complainant and the complainant has also deposed before the court regarding the liability arose out of the transaction between the complainant and the revision Crl. R.P.No.2538 of 2010 5 petitioner. On the basis of the submission made by the learned counsel, the only possible conclusion that can be arrived is that there was two transactions with the complainant ; one is at the instance of the revision petitioner and another is at the instance of the wife of the revision petitioner, since according to the counsel for the revision petitioner, the cheque in question is pertained to the account of the revision petitioner, whereas the cheque in the case covered by Ext.D1 complaint pertained to the account of the wife of the revision petitioner. The trial court as well as the lower appellate court has held that the complainant has established his case by producing the cheque from his possession on the other hand. In the present case, the revision petitioner has not produced any evidence or nothing brought out from the record to make out a probable case so as to rebut the presumption, which is otherwise available in favour of the complainant. As the courts below has concurrently found the liability of the revision petitioner, that due to the complainant and also the findings that Ext.P1 cheque was issued to discharge Crl. R.P.No.2538 of 2010 6 such liability, I find no reason to interfere with such concurrent findings. Therefore, the conviction recorded by the courts below is approved. 8. As this court is not inclined to interfere with the order of the courts below, the learned counsel 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 favourably. 9. 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 10.4.2007, 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 3 Crl. R.P.No.2538 of 2010 7 years. Considering the above facts and legal position, I am of the view that, the sentence to pay the fine amount ordered by the appellate court can be confirmed and the revision petitioner can be granted some time to pay the fine 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 to pay the fine amount as fixed by the courts below, the revision petitioner is granted one month time to pay the fine amount and in case of default in paying the fine amount, the revision petitioner is directed to undergo simple imprisonment for 1 month. Accordingly, the revision petitioner is directed to deposit the fine amount of Rs.50,000/- on or before 4.10.2010 in the trial court. In case any failure on the part of the revision petitioner in making the payment of fine amount within the stipulated time, the trial court is free to take coercive steps to secure the presence of the revision petitioner to realise the fine amount. On realisation of the fine Crl. R.P.No.2538 of 2010 8 amount, the entire amount shall be paid to the complainant as compensation u/s.357(1)(b) of Cr.P.C. The execution of warrant if any, pending against the revision petitioner shall be deferred till 4.10.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/