IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 22ND SEPTEMBER 2010 / 31ST BHADRA 1932 Crl.Rev.Pet.No. 2696 of 2010() ------------------------------ CRA.264/2009 of III ADDL.SESSIONS COURT, KOLLAM CC.11/2002 of JUDL.MAGISTRATE OF FIRST CLASS COURT, SASTHAMCOTTA .................... REVISION PETITIONER(S): APPELLANT/ACCUSED: ---------------------------------------------------------------------------- SIVAN PILLAI, AGED 60 YEARS, S/O.RAGHAVAN PILLAI, MULANTHURAYIL VEEDU, PULIYOOR VANCHI EAST, THODIYOOR VILLAGE, KARUNAGAPPALLY. BY ADV. SRI.T.GOPALAKRISHNAN RESPONDENT(S): RESPONDENTS/COMPLAILNANT AND STATE: ------------------------------------------------------------------------------------------------ 1. SAROJAKSHAN PILLAI AGED 50 YEARS, S/O.VASUDEVAN PILLAI, LEKSHMI VILASAM, NORTH MYNAGAPPALLY MURI, MYNAGAPPALLY VILLAGE, PIN 690 519. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY PUBLIC PROSECUTOR SMT. SUMANGALA P.N. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2696 of 2010 ------------------------------- Dated this the 22nd 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.3,00,000/- from the complainant and towards the discharge of the debt due to the complainant, he issued a cheque dated 17.7.2001 for a sum of Rs.3,00,000/-, 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-Sasthamkotta, by filing a formal 2 Crl. R.P.No.2696 of 2010 complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.11/02. During the trial of the case, the complainant himself was mounted to the box and gave evidence as PW1 and Exts.P1 to P4 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 1 day ie., till the rising of the court and also directed to pay a compensation of Rs.3,00,000/- u/s.357(3) of Cr.P.C. and the default sentence was fixed as 6 months simple imprisonment. 3 Crl. R.P.No.2696 of 2010 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 5.8.2010 in Crl.A.264/09, the Court of 3rd Addl. Sessions Judge, Kollam, 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.2696 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, 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 17.7.2001, for an amount of Rs.3,00,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.3,00,000/-, which belonged to the complainant is with the revision petitioner for the last 9 years. So, some time can be granted to the revision petitioner to pay the compensation amount. 5 Crl. R.P.No.2696 of 2010 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, while confirming the sentence of imprisonment ordered by the courts below and also maintaining the direction to pay the compensation amount of Rs.3,00,000/- to the complainant, 45 days time from today is granted to the revision petitioner to pay the compensation amount and the default sentence imposed by the courts below will be attracted only if there is any failure on the part of the revision petitioner in paying the compensation amount, within the above stipulated time. Accordingly, the revision petitioner is directed to appear before the trial court on 6.11.2010, to receive the sentence of imprisonment and to pay the compensation amount. In case any failure on the part of the revision petitioner in appearing before 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 6 Crl. R.P.No.2696 of 2010 execute the sentence awarded against the revision petitioner. Coercive steps if any, pending against the revision petitioner shall be deferred till 6.11.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/