IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 2ND AUGUST 2010 / 11TH SRAVANA 1932 Crl.Rev.Pet.No. 2176 of 2010() ------------------------------ CRA.125/2009 of ADDL.SESSIONS COURT, KOTTAYAM ST.1470/2006 of J.M.F.C.-II, VAIKOM .................... REVN. PETITIONER(S): / APPELLANT/ACCUSED --------------------------------------------------------------------- N.M.MEHABOOB, S/O.MUHAMMAD KUNJU, NAYANA MANZIL, VADAKARA P.O., VAIKOM. BY ADV. SRI.ALEXANDER GEORGE RESPONDENT(S): COMPLAINANT/STATE ---------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. M.S.SANIL KUMAR, S/O.SREEDHARAN, MURIYATTU HOUSE, VADAYAR VILLAGE, VAIKOM - 695308 BY PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: dmb V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2176 of 2010 ------------------------------- Dated this the 2nd day of August, 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, towards the discharge of a debt due to the complainant, issued a cheque dated 26.6.2006 for a sum of Rs.1,50,000/-, 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 petitioner has committed the offence punishable u/s.138 of Negotiable Instruments Act. With the said allegation, the complainant approached the Judl. First Class Magistrate Court- II, Vaikom, by filing a formal complaint, upon which cognizance Crl. R.P.No.2176 of 2010 2 was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.1470/06. During the trial of the case, PW1, the complainant himself was examined from the side of the complainant and Exts.P1 to P6 were marked. 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 till rising of the court and to pay a fine of Rs.1,50,000/- and the default sentence is fixed as 1 month imprisonment. It is also ordered that on realisation of fine amount, it shall be paid to the complainant as compensation u/s.357(1)(b) of Cr.P.C. 3. Though an appeal was filed, at the instance of the Crl. R.P.No.2176 of 2010 3 revision petitioner/ accused, by judgment dated 24.3.2010 in Crl.A.125/09, the Court of Addl. Sessions Judge, Kottayam, dismissed the appeal, confirming the conviction and sentence imposed against the revision petitioner. 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 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, some breathing time may be granted to deposit the fine amount. I Crl. R.P.No.2176 of 2010 4 am of the view that the said submission can be considered but subject to other relevant materials and circumstances involved in the case. 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 26.6.2006, for an amount of Rs.1,50,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.1,50,000/- which belonged to the complainant is in the hands of the revision petitioner for the last 4 years. Considering the above facts and legal position, I am of the view that, while maintaining the sentence of imprisonment as ordered by the courts below, the fine amount can be enhanced slightly and the revision petitioner can be granted 3 months time to pay the fine amount. In the result, this revision petition is disposed of confirming the conviction against the revision petitioner u/s.138 of Crl. R.P.No.2176 of 2010 5 Negotiable Instruments Act as recorded by the courts below. Accordingly, the revision petitioner is directed to undergo simple imprisonment till rising of the court and he is also directed to pay fine of Rs.1,60,000/-, within 3 months from today and in case of default in paying the fine amount, the revision petitioner is directed to undergo simple imprisonment for 2 months. Accordingly, the revision petitioner is directed to appear before the trial court on 2.11.2010 to receive the sentence of imprisonment and to pay the fine amount as directed by this court. In case any failure on the part of the revision petitioner in appearing before the court below as directed above and in making the payment of fine amount, 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. V.K.MOHANAN, Judge. ami/