IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 27TH SEPTEMBER 2010 / 5TH ASWINA 1932 Crl.Rev.Pet.No. 2664 of 2010() ----------------------------------------- CRA.162/2006 of ADDL. SESSIONS COURT (ADHOC- I), THALASSERY STC.6625/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, KANNUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED. --------------------------------------------------------------------- N.SREEDHARAN, S/O.LATE RAMAN NAIR, SREE NILAYAM, PATHIRIYAD AMSOM DESOM, P.O.MAMBRAM. BY ADV. SRI.T.P.PANKAJAKSHAN RESPONDENT(S): RESPONDNET/COMPLAINANT & ANOTHER. ----------------------------------------------------------------------------------------- 1. P.BHRATHAN, CHERUKUNNEN EDAYATH HOUSE, P.O.CHOVVA, KANNUR-6. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.P.N.SUMANGALA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2664 of 2010 ------------------------------- Dated this the 27th day of September, 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.65,000/- from the complainant and towards the discharge of the debt due to the complainant, he issued a cheque dated 5.4.2004 for a sum of Rs.65,000/-, 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, Kannur, by filing a formal complaint, upon 2 Crl. R.P.No.2664 of 2010 which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.6625/04. During the trial of the case, the complainant himself was mounted to the box and gave evidence as PW1 and Exts.P1 to P5 were marked, from the side of the complainant. 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 6 months and also directed to pay a compensation of Rs.65,000/- to the complainant u/s.357(3) of Cr.P.C. and the default sentence was fixed as 3 months simple imprisonment. 3 Crl. R.P.No.2664 of 2010 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 11.6.2010 in Crl.A.162/06, the Court of Sessions Judge-Thalassery, 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. 4 Crl. R.P.No.2664 of 2010 6. As this court is not inclined to interfere with the order of conviction recorded by the courts below, the counsel for the revision petitioner submitted that, the sentence of imprisonment ordered by the courts below is unreasonable and exorbitant and the same may be set aside and also submitted that, some breathing time may be granted to pay the compensation amount. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered but subject to other relevant inputs 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 5.4.2004, for an amount of Rs.65,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.65,000/-, which belonged to 5 Crl. R.P.No.2664 of 2010 the complainant is with the revision petitioner for the last 6 years. So, while granting some time to pay the compensation amount, the amount can be enhanced slightly. 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. Accordingly, in modification of the sentence of imprisonment ordered by the courts below, the revision petitioner is directed to undergo simple imprisonment for one day ie., till the rising of the court and he is further directed to pay a sum of Rs.80,000/- to the complainant as compensation u/s.357(3) of Cr.P.C. within 3 months from today and in case of default in paying the compensation amount, the revision petitioner is directed to undergo simple imprisonment for 3 months. Accordingly, the revision petitioner is directed to appear before the trial court on 27.12.2010, to receive the sentence of imprisonment and to pay the compensation amount, as fixed by this court. In case any failure on the part of the revision petitioner in appearing before 6 Crl. R.P.No.2664 of 2010 the court below as directed above and in paying the compensation 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. Execution of warrant if any, pending against the revision petitioner shall be deferred till 27.12.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/