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. 1861 of 2010() ------------------------------ CRA.989/2008 of IV ADDL.SESSIONS COURT, ERNAKULAM CC.445/2006 of ADDL.CHIEF JUDICIAL MAGISTRATE (E & O),ERNAKULAM .................... REVN. PETITIONER: PETITIONR/APPELLANT/ACCUSED ------------------------------------------------ N.D.JOSEPH, S/O. KUNJAMMA, C46, FACT TOWNSHIP, UDYOGAMANDAL, ELOOR, ERNAKULAM. BY ADV. SRI.C.ANILKUMAR (KALLESSERIL) SRI.P.M.MANASH RESPONDENT(S): --------------- 1. K.P.DOMINIC, S/O. PETER, KALAPPURACKAL HOUSE, ELAMAKKARA, EDAPPALLY. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI VENUGOPAL M.R. 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. 1861 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, with whom the complainant had direct knowledge and acquaintance, borrowed a sum of Rs. 60,000/- 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-1, Ernakulam based upon which, cognizance was taken for the offence under CRL.R.P. 1861/2010 :-2:- section 138 of the Act and institutedC.C.No.133/2005 and later it was made over to the Addl.Chief Judicial Magistrate, (Economic Offences), Ernakulam and renumbered as C.C.No.445/2006. During the trial of the case, the complainant was examined as PW1 and produced Exts.P1 to P4 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 had borrowed a sum of Rs.60,000/- 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, consequently, he is sentenced to undergo simple imprisonment for a period of one month and also directed to pay a fine of Rs.60, 000/-. The default sentence fixed is simple imprisonment for two 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 CRL.R.P. 1861/2010 :-3:- order of sentence, the revision petitioner had filed an appeal as Crl.A.No.989/2008 and the court of IV Addl.District and Sessions Judge, Ernakulam by judgment dated 31.3.2010, 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. After hearing the counsel for the revision petitioner and on perusal of the judgments of the courts below, I find no reason to interfere with the concurrent finding of the courts below in fixing the liability of the revision petitioner. 5. Learned counsel for the revision petitioner submitted that a lenient view may be taken in the matter of sentence and that a breathing time may be granted to make the payment of compensation by way of fine and the revision petitioner may be permitted to pay the amount directly to the complainant. 6. Having regard to the facts and circumstances involved CRL.R.P. 1861/2010 :-4:- in this case, I am of the view that the said submission of the learned counsel can be considered favourably. The Apex Court, in Damodar S.Prabhu v. Sayed Babalal H (JT 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. If that be so, while reducing the sentence of imprisonment, the sentence to pay fine can be set aside and instead of that the revision petitioner can be ordered to pay compensation to the complainant directly under section 357(3) Cr.P.C but subject to satisfaction of the trial court. In the result, this Crl.R.P is disposed of confirming the conviction of the revision petitioner-accused under section 138 of the N.I.Act as recorded by the trial court as well as the lower appellate court and accordingly, the revision petitioner is sentenced to undergo imprisonment till rising of the court and the revision petitioner is directed to pay a sum of Rs.60,000/- to the complainant/first respondent herein under section 357(3) Cr.P.C., within two weeks from today. The revision petitioner is free to make the payment of compensation directly to the CRL.R.P. 1861/2010 :-5:- complainant or by remitting the same in the court, subject to the satisfaction of the trial court. Accordingly, the revision petitioner is directed to appear before the trial court on 5th July, 2010 to receive the sentence and to pay the compensation to the complainant and on failure to pay the compensation amount as directed above, he is directed to undergo simple imprisonment for 6 months. 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. 1861/2010 :-6:- O.P.No. JUDGMENT Dated:..