IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 30TH JULY 2010 / 8TH SRAVANA 1932 Crl.Rev.Pet.No. 2299 of 2010() ------------------------------------------------ CRA.10/2008 of ADDL. SESSIONS COURT, (ADHOC-I), PALAKKAD ST.4014/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT-III, PALAKKAD .................................................. REVN. PETITIONER(S): APPELLANT/ACCUSED: -------------------------------------------------------------------------- M.VASU, PROPRIETOR, PALAKKAD AUTO GARAGE,25/175, NEAR KSRTC, PALAKKAD. BY ADV. MR.M.SREEKUMAR SMT.M.A.THASNIM RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE: ---------------------------------------------------------------------------------------------- 1. CUSTOMERS KURIES(P) LTD., MAGISTIC BUILDINGS, VADAKKANTHARA, PALAKKAD. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR. VENUGOPAL M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2299 of 2010 ------------------------------------------------- Dated this the 30th day of July, 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 complainant is a private enterprise engaged in the conduct of curies and the accused was one of their subscribers and the accused had auctioned the curie and accepted the curie amount and subsequently he made default and on settlement of account, the accused issued a cheque for Rs.34,445/-(Rupees Thirty four thousand four hundred and forty five only), which when presented for encashment dishonoured as there was “no sufficient fund” in the account maintained by the accused and the cheque amount was not repaid inspite of a formal demand notice and thus the revision Crl. R.P.No.2299/2010 2 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-III, Palakkad by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.4014/2005. During the trial of the case, PW1 was examined from the side of the complainant and Exts.P1 to P5 documents were produced. From the side of the defence, though no witness was examined, Ext.D1 was produced and marked. On the basis of the available materials and evidence, 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 Crl. R.P.No.2299/2010 3 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/appellant to undergo simple imprisonment for 1 month and also ordered to pay a compensation of Rs.34,445/- to the complainant u/s.357(3) of Cr.P.C. No default sentence is fixed. 3. Aggrieved by the above order of conviction and sentence, the revision petitioner had approached the appellate court by filing an appeal, and by judgment dated 27.08.2009 in Crl.Appeal No.10/2008, the Court of Addl. District and Sessions Judge (Adhoc-I), Palakkad dismissed the appeal confirming the conviction, but sentence of imprisonment was modified as till raising of the court. No interference was made with respect to the order for compensation. It is the above conviction and sentence challenged in this revision petition. 4. I have heard the learned counsel appearing for Crl. R.P.No.2299/2010 4 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 Instruments Act, is approved. 6. The counsel for the revision petitioner submitted that the sentence imposed by the courts below is highly exorbitant and unreasonable. It is also submitted that some breathing time may be granted to the revision Crl. R.P.No.2299/2010 5 petitioner to pay the amount. 7. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered favorably but subject to the other relevant facts involved in the case. Going by the records and the findings of the court below, which approved by this court, a sum of Rs.34,445/- which belonged to the complainant is with the revision petitioner for the last 5 years. 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. Considering the above facts and legal position, I am of the view that, while granting time to pay the compensation, the amount can be enhanced slightly. In the result, this revision petition is disposed of Crl. R.P.No.2299/2010 6 confirming the conviction against the revision petitioner u/s.138 of Negotiable Instruments Act as recorded by the trial court as well as the lower appellate court. Accordingly, while confirming the sentence of imprisonment as ordered by the lower appellate court, the revision petitioner is directed to pay a sum of Rs.37,000/- (Rupees Thirty seven thousand only) to the complainant as compensation u/s.357(3) of Cr.P.C within 3 months from today and in default he is directed to undergo simple imprisonment for a period of 1 month. The revision petitioner is free to pay the compensation amount as ordered by this court either directly to the complainant or by remitting the same in the trial court, whichever subjected to the satisfaction of the trial court. The revision petitioner is directed to appear before the trial court on 30.10.2010 to receive the sentence and to pay the compensation. Execution Crl. R.P.No.2299/2010 7 of warrant if any shall be differed till 30.10.2010. In case, of failure on the part of the revision petitioner in appearing before the court below, 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. Sd/- V.K.MOHANAN, Judge. ss/ //True copy// P.A to Judge