IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 22ND JULY 2011 / 31ST ASHADHA 1933 Crl.Rev.Pet.No. 1219 of 2011() ------------------------------------------- CRA.NO. 144/2009 of SESSIONS COURT, PALAKKAD ST.NO.1277/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PALAKKAD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------------------ V. GOPALAKRISHNAN, AGED 56 YEARS, S/O. VELAYUDHAN, T.S.O TELECOME (RURAL), ANAMALAI,TAMIL NADU. BY ADV. SRI.T.K.SANDEEP RESPONDENT(S)/ COMPLAINANT/STATE ------------------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. 2. NAZEEMA, AGED 35 YEARS, D/O.N.V. MOHAMMED, PADINJAKKARA HOUSE, ELAPULLY.P.O, PALAKKAD - 678 622. R1 BY PUBLIC PROSECUTOR SRI.SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts S.S. SATHEESACHANDRAN, J. ------------------------------------------ Crl. R.P No. 1219 OF 2011 ------------------------------------------ Dated this the 22nd day of July, 2011. O R D E R The Revision is by the accused convicted for the offence under section 138 of the Negotiable Instruments Act, for short the 'NI Act', concurrently, by two inferior courts. The trial Magistrate on his conviction has sentenced him to undergo simple imprisonment for one year and also to pay compensation of Rs.1,50,000/-, the cheque amount, with default term of simple imprisonment for four months. The Sessions Judge turned down his appeal confirming his conviction, but, modifying and reducing the substantive term of imprisonment, limiting it to 3 months, retaining the compensation awarded with the default term. Feeling aggrieved, the accused has preferred this revision. 2. Though the learned counsel advanced arguments impeaching the conviction concurrently rendered against him by the courts below contending that the defence pleaded as to denial of execution of cheque and also he had no transaction with the complainant was not properly appreciated and, further, there was absence of positive evidence to prove the due Crl. R. P No.1219/2011 -2- execution of the cheque, after going through the judgments rendered by the trial magistrate and also learned Sessions Judge, I find, the finding of guilt concurrently entered against the accused is not liable to be interfered with in exercise of revisional jurisdiction. Perusing the judgment of the learned Magistrate, it is seen, the complainant was examined as PW1. Her testimony was found trustworthy and reliable. The learned magistrate had opportunity to watch the demeanour and deportment of the witness, and the conclusion formed by him deserve to be accepted unless it is shown that there was serious infirmity in the view taken. The learned Sessions Judge, after reappraisal of evidence, concurred with the view taken by the Magistrate. It is also seen that the accused has not responded to the statutory notice issued intimating dishonour after its acknowledgment even by sending a reply notice. The belated plea canvassed in trial denying the transaction with the complainant without offering any explanation as to how his cheque landed in the hands of complainant, as rightly held by the courts below, was unworthy of any merit. Conviction of the accused for the offence under section 138 of the NI Act in the proved facts of the case, is unassailable. Crl. R. P No.1219/2011 -3- 3. So far as the sentence imposed as it now stands, modified with three months simple imprisonment by the order of the learned Sessions Judge, the learned counsel for the appellant/accused urged that imposition of the prison term as if section 354 of the Code mandated such punishment against an offender convicted of the offence under Section 138 of the NI Act is not proper and correct. Penal consequences on dishonour of cheque incorporating provisions under Sections 138 to 147 of NI Act has been made to give sanctity to the commercial transactions by use of cheques. Essentially the dispute arising from dishonour of cheques is purely civil in nature but to go more credibility to commercial transaction through banks with cheques such penal provisions have been brought into the statute. However, that by itself does not indicate any offender found guilty of such offence has to be incarcerated in prison for a specific term. Such punishment may be warrant in case exceptional circumstances are made out in the case. Otherwise leniency in punishment to the offender of such offence is called for, since the dishonour of cheque might have arisen for reasons beyond his contemplation at the time of issue of cheque. I find no exceptional circumstance in the present case to warrant Crl. R. P No.1219/2011 -4- imprisonment of the accused for a term as part of the punishment. 4. Sentence imposed against the accused shall stand modified as imprisonment for a day, till rising of the Court, retaining the direction to pay compensation as fixed with the default term stipulated. 5. Petitioner shall pay the compensation within two months from today. The learned Magistrate shall keep in abeyance the execution of the sentence against the revision petitioner/accused for the aforesaid period. Petitioner shall appear before the Magistrate on 03-10-2011 to serve out the sentence of imprisonment for one day, till the rising of the Court, and to report the payment of compensation. In default of his appearance and non payment of compensation, the Magistrate concerned shall take necessary steps to execute the sentence in accordance with law. Revision petition is disposed of. Sd/- S.S. SATHEESACHANDRAN, JUDGE AMG True copy P.A to Judge