IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 22ND JUNE 2010 / 1ST ASHADHA 1932 Crl.Rev.Pet.No. 1789 of 2010() ------------------------------ CRA.89/2009 of III ADDL.SESSIONS COURT, KOLLAM ST.217/2006 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOLLAM .................................................. REVN. PETITIONER(S): APPELLANT/ACCUSED ----------------------------------------------------------------- CHITHRA GOVIND, D/O.GOVINDANKUTTY, THE MAYYANAD CO-OPERATIVE BANK LTD., ERAVIPURAM BRANCH, MADANNADA, VENDARMUKKU, KOLLAM. BY ADV. MR.JOHNSON GOMEZ RESPONDENT(S): COMPLAINANT ----------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. SUNIL KUMAR.S, S/O.SURARAJAN, POUNDAZHIKAM, MAYYANAD.P.O, KOLLAM. PUBLIC PROSECUTOR MR. VENUGOPAL M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1789 of 2010 ------------------------------- Dated this the 22nd day of June, 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, towards the discharge of a debt due to the complainant, issued a cheque dated 25.10.2005 for Rs.3 lakhs, which when presented for encashment dishonoured 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 same allegation, the complainant approached the Judicial First Class Magistrate Court-II, Kollam, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.217/06. During the trial of the case, PW1 was examined from the side of the complainant Crl. R.P.No.1789 of 2010 2 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 her 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.3,15,000/- to the complainant, u/s.357(3) of Cr.P.C. The default sentence is fixed as 3 months imprisonment. 3. In appeal, at the instance of the revision petitioner/ accused in Crl.A.89/09, by judgment dated 9.12.2009 of the Court of IIIrd Addl. Sessions Judge, Kollam, dismissed the appeal and confirmed the conviction of the revision petitioner u/s.138 of Crl. R.P.No.1789 of 2010 3 Negotiable Instruments Act. Whereas the sentence of imprisonment reduced to simple imprisonment till rising of the court and with a direction to pay the cheque amount of Rs.3 lakhs as compensation to the complainant and the default sentence is refixed as 3 months simple imprisonment. 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. 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 Crl. R.P.No.1789 of 2010 4 Instruments Act, is confirmed. 6. The counsel for the revision petitioner submitted that a lenient view may be taken in the matter of sentence and some breathing time may be granted to deposit the fine amount. I am of the view that the said submission can be considered favourably but subject to other relevant materials and circumstances 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 aspects. In the present case, the cheque in question is dated 25.10.2005, that too for an amount of Rs.3 lakhs. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.3 lakhs is in the hands of the revision petitioner for the last more than 4 ½ years. Considering the above facts and legal position, I am of Crl. R.P.No.1789 of 2010 5 the view that, the sentence of imprisonment as ordered by the lower appellate court can be maintained but the amount fixed by the trial court as compensation shall be restored and the default sentence also shall be enhanced into 6 months. In the result, this revision petition is disposed of confirming the conviction against the revision petitioner u/s.138 of Negotiable Instruments Act. Accordingly the revision petitioner is sentenced to undergo simple imprisonment till rising of the court and she is directed to pay compensation of Rs.3,15,000/- to the complainant u/s.357(3) of Cr.P.C. and in default she is directed to undergo simple imprisonment for a period of 6 months. The revision petitioner is free to pay the compensation amount directly to the complainant or remit the same in the trial court, subject to the satisfaction of the trial court. Accordingly, the revision petitioner is directed to appear before the trial court on 22.9.2010 to pay the compensation amount as directed by this court. The coercive steps if any taken against the revision petitioner shall be deferred till 22.9.2010. In case any failure on Crl. R.P.No.1789 of 2010 6 the part of the revision petitioner in appearing before the court below as directed above and in making the deposit of fine 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. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/