IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 17TH DECEMBER 2010 / 26TH AGRAHAYANA 1932 Crl.Rev.Pet.No. 1720 of 2003() ------------------------------ CRA.255/1999 of ADDL.SESSIONS COURT, KOTTAYAM CC.792/1994 of JUDL. MAGISTRATE OF FIRST CLASS, CHANGANACHERRY .................... REVN. PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------- K.S. SALIM, KODANAYYATHU HOUSE, JOMALLOOR P.O. CHUNAKKARA. BY ADV. SRI.C.S.SUNIL RESPONDENTS/RESPONDENTS/COMPLAINANT: ------------------------------------------------------------------ 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. 2. T.H. JINNAH, THAYAMADAM VEEDU, NEAR RAILWAY STATIIONM, CHANGANACHERRY. ADV. SRI.MATHEW JOHN (K) FOR R2 SRI.SUJESH MENON V.B. FOR R2 R1 BY PUBLIC PROSECUTOR SHRI. MUHAMMED PUZHAKKARA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/12/2010, THE COURT ON 17/12/2010 PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.7280 OF 2003 IN CRL.R.P.NO. 1720 OF 2003 DISMISSED 17.12.2010 SD/- M.L.JOSEPH FRANCIS, JUDGE /TRUE COPY/ M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 1720 of 2003 - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of December, 2010 O R D E R This Crl.R.P. is filed by the accused in C.C.No. 792 of 1994 on the file of the Judicial First Class Magistrate, Changanacherry. The cheque amount was Rs.50,000/- In the trial court the accused was convicted under Section 138 of the N.I. Act and sentenced to pay a fine of Rs.60,000/-, in default to undergo S.I. for three months. It was ordered that if fine amount is paid, Rs.50,000/- shall be paid to the complainant as compensation. The appeal filed by the accused as Crl.A.No. 255 of 1999 before the Additional Sessions Court, Kottayam was allowed in part. The conviction under Section 138 of the N.I. ct was confirmed, the sentence was set aside and the case was remitted back to the trial court for the limited purpose of considering the appropriate sentence to be awarded. The trial Crl.R.P.No. 1720 of 2003 2 court, as per judgment dt. 18.7.2002, sentenced the accused to undergo S.I. for six months and to pay a compensation of Rs.50,000/- to the complainant under Section 357(3) Cr.P.C., in default to undergo S.I. for three months. Against that conviction and sentence the accused filed this revision petition. 2. Heard learned counsel for the revision petitioner, learned counsel for the complainant and the learned Public Prosecutor. 3. The learned counsel appearing for the revision petitioner reiterated the same contentions raised before the trial Court and the appellate court. Learned counsel for the complainant supported the judgment of the court below. 4. The courts below have concurrently held that the cheque in question was drawn by the petitioner in favour of the complainant, that the complainant had validly complied with clauses (a) and (b) of the proviso to Section 138 of the N.I. Act and that the Revision petitioner/accused failed to make the payment Crl.R.P.No. 1720 of 2003 3 within 15 days of receipt of the statutory notice. Both the courts have considered and rejected the defence set up by the revision petitioner while entering the conviction. The said conviction has been recorded after a careful evaluation of the oral and documentary evidence. I do not find any error, illegality or impropriety in the conviction so recorded concurrently by the courts below and the same is hereby confirmed. 5. In the decision reported in Damodar S. Prabhu v. Sayed Babalal H (2010 (2) KHC 428 (SC)), it was held that in a case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. Considering the facts and circumstances of the case, I am of the view that sentencing the accused to pay a fine of Rs.50,000/- would meet the ends of justice. The said fine shall be paid as compensation under Section 357(1) of Cr.P.C. The revision petitioner is permitted either to deposit the said fine amount before the Court below or directly pay Crl.R.P.No. 1720 of 2003 4 the compensation to the complainant within three months from today and to produce a memo to that effect before the Trial Court in case of direct payment. If he fails to deposit or pay the said amount within the aforesaid period, he shall suffer simple imprisonment for three months by way of default sentence. The amount if any deposited in the trial court by the accused can be given credit to. 6. Accordingly this Revision Petition is disposed of confirming the conviction entered and by modifying the sentence imposed on the revision petitioner. (M.L. JOSEPH FRANCIS) Judge tm