IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 27TH MAY 2010 / 6TH JYAISHTA 1932 Crl.Rev.Pet.No. 1605 of 2010() ------------------------------ CRA.740/2008 of SESSIONS COURT, TRIVANDRUM .................... REVN. PETITIONER(S): ACCUSED ------------------------------------------------ C.A. SASI, S/O. AZHAKAN, U.R 43, UPPALAM ROAD STATUE, THIRUVANANTHAPURAM. BY ADV. SRI.V.P.REGHURAJ RESPONDENT(S): COMPLAINANT AND STATE ----------------------------------------------------------------- 1. P.R. RAJASEKHARAN NAIR, PARVATHY VILASAM PUTHENVEEDU, EDACODE, NEMOM.P.O, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REP. BY THE STATE PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SRI.C.M.KAMMAPPU, PUBLIC PROSECUTOR FOR R2. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ami/ V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1605 of 2010 ----------------------------------- Dated this the 27th day of May, 2010. O R D E R The accused in a prosecution for the offence u/s.138 of Negotiable Instruments Act is the revision petitioner. The allegation against the revision petitioner/accused is that, he had borrowed a sum of Rs.80,000/- from the complainant and towards the discharge of the said liability, he issued a cheque dated 9.2.2005, which when presented for encashment dishonoured as there was no sufficient fund in the account of the accused. Thus according to the complainant, the revision petitioner has committed the offence u/s.138 of Negotiable Instruments Act . With the above allegation, he approached Addl. Chief Judicial Magistrate Court, Thiruvananthapuram, wherein S.T.No.260/05 was instituted, which was subsequently transferred to JFCM-VI, Thiruvananthapuram, wherein the case is renumbered as S.T.469/06. During the course of trial, the complainant himself examined as PW1 and he produced Exts.P1 to P5. From the side of the revision petitioner/accused Crl. R.P.No.1605 of 2010 2 two persons were examined as Dws.1 and 2 and Exts.X1 and X2 were also marked. The trial court on the basis of the materials on record found that, the accused is guilty and accordingly he is convicted u/s.138 of Negotiable Instruments Act and sentenced to undergo simple imprisonment for 3 months and to pay a compensation of Rs.80,000/- u/s.357(3) of Cr.P.C. Though the above verdict has challenged by filing a criminal appeal, the Sessions Court, Trivandrum, by an order dated 22.9.2009 in Crl.A.No.740/08, allowed the appeal only in part. Accordingly, while confirming the conviction of the revision petitioner, sentenced him to undergo simple imprisonment till raising of the court and also directed to pay compensation of Rs.80,000/- to the complainant and in default to pay compensation amount, he is directed to undergo simple imprisonment for 3 months. Accordingly the revision petitioner is directed to appear before the Court on 24.11.2009. It is the above judgments of the courts below challenged in this revision petition. Crl. R.P.No.1605 of 2010 3 2. I have heard Mr.V.P.Raghuraj, the learned counsel for the revision petitioner and also perused the judgments of the courts below. 3. On hearing the arguments of the learned counsel and on perusal of the judgments of the courts below, it can be seen that the revision petitioner has no dispute regarding the execution and issuance of the cheque in question. According to the revision petitioner, Ext.P1 cheque which is the subject matter of the present prosecution, was issued to the complainant connected with a prior transaction between himself and the complainant. Thus it can be seen that the transaction, though not as claimed by the complainant, admitted by the accused and also admitted the signature and execution and issuance of Ext.P1 cheque. If that be so, it is heavily cast upon the accused/ revision petitioner to establish that, the cheque in question was the one which entrusted with the complainant connected with the previous transaction. But both the trial court as well as the lower appellate court has concurrently found that, the above plea of Crl. R.P.No.1605 of 2010 4 the revision petitioner has not been substantiated. According to the courts below, the complainant has established his case by producing convincing evidence and materials and thereby the complainant is entitled to get the presumption u/s.139 of the Negotiable Instruments Act. Thus according to me, it is for the revision petitioner to effectively rebut the presumption by producing cogent materials and evidence. Ofcourse, the accused need not produce evidence so as to substantiate his case and prove the same beyond reasonable doubt, as in the case of the prosecution. But the courts below, based upon the materials and evidence produced by the accused came into a conclusion that the plea raised by the accused is not substantiated. The above finding is clearly based upon the facts and evidence and is not revisable while exercising the revisional jurisdiction of this court. Therefore, I find no reason to interfere with the orders of the courts below and accordingly the conviction recorded by the courts below are confirmed. 4. The learned counsel for the revision petitioner Crl. R.P.No.1605 of 2010 5 submitted that, a breathing time may be granted to receive the sentence and to make the payment of compensation amount. Considering the fact that there were frequent transaction between the parties, I am of the view that the said prayer can be allowed. But it is also relevant to note that the cheque in question is dated 9.2.2005 and as on today more than 5 years are over and during this period a sum of Rs.80,000/- was in the hands of the revision petitioner. 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. Having regard to the facts and circumstances involved in the case, I am of the view that by granting time to the revision petitioner to make the deposit of compensation amount, the amount can be enhanced to the tune of Rs.90,000/-, which will be sufficient to meet the ends of justice. In the result, this revision petition is disposed of, confirming Crl. R.P.No.1605 of 2010 6 the conviction of the revision petitioner u/s.138 of Negotiable Instruments Act recorded by the trial court as well as the lower appellate court. The amount fixed by the lower appellate court as compensation is enhanced to the tune of Rs.90,000/- and in case of failure on the part of the revision petitioner to make the payment, he is directed to undergo simple imprisonment for a period of 5 months u/s.357(3) of Cr.P.C. Accordingly, the revision petitioner is directed to appear before the trial court on 31.8.2010 to receive the sentence of imprisonment and to make the deposit of compensation amount as directed above. 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 and to realise the compensation amount. V.K.MOHANAN, Judge. ami/