IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 1ST OCTOBER 2010 / 9TH ASWINA 1932 Crl.Rev.Pet.No. 2865 of 2010() ------------------------------------ (CRA.37/2008 of II ADDL.SESSIONS COURT, KOLLAM CC.1109/2004 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KARUNAGAPPALLY) .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ----------------------------------------------------- K.V. YASODHARAN, KOOTTOOHARAYIL VEEDU, ADINADU SOUTH, KATTIKADAVU P.O., K.S.PURAM, KARUNAGAPPALLY. BY ADV. SRI.N. MANU THAMPI RESPONDENT(S): COMPLAINANT/STATE ----------------------------------------------- 1. SUKESHAN, S/O.KESAVAN, SUKESH BHAVANAM ADINADU SOUTH, K.S.PURAM, KARUNAGAPPALLY-690518. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. V. TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SVS/ V.K.MOHANAN, J. - - - - - - - - - - - - - - - - - - - Crl. R.P.No.2865 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of October, 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, borrowed a sum of Rs.40,000/- from the complainant, issued a cheque dated 17.5.2004, 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, Karunagappally, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted Crl. R.P.No.2865 /2010 2 C.C.No.1109/04. During the trial of the case, PWs 1 to 2 were examined from the side of the complainant and Exts.P1 to P5 were marked and produced. 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 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 undergo simple imprisonment for 3 months and to pay a compensation of Rs.40,000/- to the complainant u/s. 357(3) of Cr.P.C. and the default sentence is fixed as 1 month simple imprisonment. 3. Though an appeal was filed at the instance of the revision petitioner/accused, by judgment dated 30.06.2010 Crl. R.P.No.2865 /2010 3 in Crl.A.No.37/08, the Court of The IInd Additional Sessions Judge, Kollam, allowed the appeal only in part and thus while confirming the conviction, the sentence is modified and the appellant is sentenced to pay a sum of Rs.40,000/- as fine and also sentenced to undergo imprisonment till the rising of the court. The default sentence is fixed as 5 days simple imprisonment. It is also ordered that if the fine amount is realized, it shall be paid to the complainant as compensation u/s.357(1)(b) of Cr.P.C. 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 Crl. R.P.No.2865 /2010 4 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 Instruments Act, is approved. 6. As this court is not inclined to interfere with the order of conviction, the counsel for the revision petitioner submitted that, some breathing time may be granted to the petitioner to pay the fine amount. According to me, the said submission can be considered positively but subject to slight enhancement with respect to the fine amount. 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 17.5.2004, for an amount of Rs.40,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Crl. R.P.No.2865 /2010 5 Rs.40,000/-, which belonged to the complainant, is with the revision petitioner for the last 6 years. 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. Thus while confirming the sentence of imprisonment, as modified and fixed by the appellate court, the revision petitioner is sentenced to pay a fine of Rs.45,000/-(Rupees Forty five thousand only) within three months from today and the default sentence fixed by the appellate court will be attracted only on the failure of the revision petitioner to deposit the fine within three months time from today. Accordingly, the revision petitioner is directed to appear before the trial court on 31.12.2010 to receive the sentence of imprisonment and to pay the fine amount. If there is any failure on the part of the revision petitioner in appearing before the court below and depositing the fine amount, the trial court is free to take coercive steps to execute the sentence and to realize the Crl. R.P.No.2865 /2010 6 fine amount. Coercive steps if any pending against the revision petitioner shall be deferred till 31.12.2010. Criminal revision petition is disposed of accordingly. Sd/- V.K.MOHANAN, Judge. ss/. //True copy// P.A to Judge