IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 30TH JULY 2010 / 8TH SRAVANA 1932 Crl.Rev.Pet.No. 2172 of 2010() ----------------------------------------------- CRA.269/2005 of ADDL. DISTRICT & SESSIONS COURT (ADHOC-I), KOLLAM CC.827/2003 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOTTARAKKARA ..................................... REVN. PETITIONER(S): APPELLANT/ACCUSED: ------------------------------------------------------------------------- CHANDY SAMUEL, S/O. SAMUEL RESIDING AT CHARIVU PURAYIDATHIL VEEDU, CHELLAKKODU.P.O., RANNI. BY ADV. SRI.C.RAJENDRAN RESPONDENT(S): COMPLAINANT: ------------------------------------------------------ 1. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2. ROSAMMA THANKACHAN, THENGUM PANAYIL (ALEX MANDIRAM), AYOOR. PUBLIC PROSECUTOR MR.NAZAR C.M THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2172 of 2010 ---------------------------------------------- Dated this the 30th 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 borrowed a sum of Rs.2,00,000/-(Rupees Two lakhs only) from the complainant on 02.07.2002 at her residence at Ayoor. Towards the discharge of said liability, the accused issued cheque dated 02.07.2003 to the complainant for an amount of Rs.2,00,000/-, which when presented for encashment dishonoured 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 Crl. R.P.No.2172/2010 2 the same allegation, the complainant approached the Judicial First Class Magistrate Court-II, Kottarakkara by filing a formal complaint (C.C.No.827/2003) upon which cognizance was taken u/s.138 of Negotiable Instruments Act. During the trial of the case, PW1 was examined from the side of the complainant and Exts.P1 to P5 were marked. From the side of the defense, DW1 was examined and produced Ext.D1 and D2. 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 her debt due to the complainant. 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 her u/s.138 of Negotiable Instruments Act. On such conviction, the trial court Crl. R.P.No.2172/2010 3 sentenced the revision petitioner to undergo simple imprisonment for 3 months and also directed her to pay an amount of Rs.2,00,000/- to the complainant as compensation u/s.357(3) of Cr.P.C and the default sentence is fixed as 1 month simple imprisonment. Though an appeal was filed by the accused/ revision petitioner, by judgment, dated 21.05.2010 in Crl. Appeal No.269/2005, the Court of Addl. District and Sessions Judge (Adhoc-I), Kollam, dismissed the appeal confirming the conviction and sentence. It is the above conviction and sentence challenged in this revision petition. 3. I have heard the learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. 4. Reiterating the stand taken by the accused/revision petitioner during the trial and appeal, Crl. R.P.No.2172/2010 4 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. 5. The counsel for the revision petitioner submitted that, some breathing time may be granted to the revision petitioner to deposit the compensation amount. It is also submitted that the sentence of imprisonment ordered by the courts below is highly exorbitant and unreasonable. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered favourably Crl. R.P.No.2172/2010 5 but subject to other relevant facts involved in the case. As per the records and the findings of the court below which approved by this court, the cheque in question is dated 2.07.2003 that too for an amount of Rs.2,00,000/- which belonging to the complainant. The revision petitioner is now crossed the age of 58 years. 6. 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. Considering the above facts and legal position, I am of the view that, the sentence of imprisonment ordered by the lower appellate court can be modified and reduced and at the same time, the amount of compensation can be enhanced slightly. In the result, this revision petition is disposed of Crl. R.P.No.2172/2010 6 confirming the conviction against the revision petitioner u/s.138 of Negotiable Instruments Act as recorded by the courts below. The sentence of imprisonment ordered by the courts below is modified and reduced to one day simple imprisonment, i.e, till the raising of the court and the revision petitioner is further directed to pay a sum of Rs.20,20,000/- (Rupees Two lakhs twenty thousand only) to the complainant within 3 months from today as compensation u/s.357(3) of Cr.P.C. and in case of default in paying the compensation, the revision petitioner is directed to undergo simple imprisonment for a period of 3 months. Accordingly, the revision petitioner is directed to appear before the trial court on 30.10.2010 to receive the sentence and pay the compensation amount as directed by this court. The revision petitioner is free to pay the above amount of compensation to the complainant either directly or by Crl. R.P.No.2172/2010 7 remitting the same in the trial court which ever subjected to the satisfaction of the learned Magistrate. In case of 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 the revision petitioner. Criminal revision petition is disposed of accordingly. Sd/- V.K.MOHANAN, Judge. ss/- //True copy// P.A to Judge