IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 27TH JULY 2010 / 5TH SRAVANA 1932 Crl.Rev.Pet.No. 2162 of 2010() ------------------------------ CRA.461/2008 of ADDL.SESSIONS COURT (ADHOC- I), KOTTAYAM ST.1294/2007 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM .................... REVISION PETITIONER:APPELLANT:ACCUSED: ----------------------------------------------------------------------- K.K.PRADEEP, S/O.KRISHNANKUTTY, KIZHAKKEKARAYIL, MANGANAM SERVICE CO-OPERATIVE BANK,VADAVATHOOR P.O.,KOTTAYAM. BY ADV. SRI.SURIN GEORGE IPE RESPONDENT(S): RESPONDENTS:COMPLAINANT & STATE: ------------------------------------------------------------------------------------------ 1. JAIMON P.V.,KOCHUPALATHATHIL HOUSE, MANGANAM P.O.,VIJAYAPURAM,KOTTAYAM. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. C.M. NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2162 of 2010 ------------------------------- Dated this the 27th 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 case of the complainant is that the accused/revision petitioner, towards the discharge of a debt due to the complainant, issued a cheque dated 2.7.2005 for a sum of Rs.75,000/-, 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 Judicial First Class Magistrate Court-II (Mobile), Kottayam, by filing a formal complaint, upon Crl. R.P.No.2162 of 2010 2 which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.1294/07. During the trial of the case, PW1 the complainant himself, was examined from the side of the complainant and Exts.P1 to P9 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 for 2 months and to pay a fine of Rs.10,000/- u/s.138 of the Negotiable Instruments Act and the default sentence is fixed as 1 month simple imprisonment. 3. Though an appeal is filed at the instance of the revision Crl. R.P.No.2162 of 2010 3 petitioner/accused, by judgment dated 23.9.2009 in Crl.A.145/08, the Court of Sessions, Kottayam Division, allowed the appeal only in part, confirming the conviction of the revision petitioner u/s.138 of Negotiable Instruments Act but the sentence of imprisonment is set aside and sentenced the revision petitioner to pay a fine of Rs.80,000/- and it is also directed that on realisation of the fine amount, a sum of Rs.75,000/- shall be paid to the complainant as compensation u/s.357(1)(b) of Cr.P.C. but the default sentence was fixed as 3 months simple imprisonment. 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 Crl. R.P.No.2162 of 2010 4 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 pay the amount and also submitted that the revision petitioner may be permitted to pay the amount directly to the complainant by converting the order of fine into compensation. I am of the view that the said submission can be considered favourably but subject to other relevant materials and circumstances involved in the case. 7. In the present case, the cheque in question pertained to the year 2005 that too for an amount of Rs.75,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.75,000/-, which belonged to the complainant, is in the hands of the revision petitioner for the last 5 years. Probably it was on the basis of the above fact, the lower appellate court while setting aside the sentence of imprisonment, Crl. R.P.No.2162 of 2010 5 directed the revision petitioner to pay a fine of Rs.80,000/-. Considering the above facts and legal position, I am of the view that, instead of sentencing the revision petitioner to pay the fine amount, he can be directed to pay compensation to the complainant. 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. The learned counsel for the revision petitioner submitted that the amount shown in the disputed cheque and the allegation are not correct and the revision petitioner may be permitted to pay the amount directly to the complainant, for which the revision petitioner is ready to undergo imprisonment, in case this court issue such a direction. 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, the revision petitioner is sentenced to undergo simple Crl. R.P.No.2162 of 2010 6 imprisonment for one day ie., till rising of the court and he is also directed to pay compensation of Rs.83,000/- to the complainant u/s.357(3) of Cr.P.C., within 3 months from today. In case of any default in paying the compensation amount within the stipulated period, the revision petitioner is directed to undergo simple imprisonment for a period of 6 months. Accordingly, the revision petitioner is directed to appear before the trial court on 27.10.2010 to receive the sentence and to pay the compensation amount. The revision petitioner is free to pay the compensation either directly to the complainant or by remitting the same in the trial court, which ever subject to the satisfaction of the learned Magistrate. 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 execute the sentence awarded against him. Coercive steps if any, is pending against the revision petitioner, the same shall be deferred till 27.10.2010. Crl. R.P.No.2162 of 2010 7 Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/