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. 2266 of 2010() ----------------------------------------------- CRA.213/2007 of ADDL. SESSIONS COURT (ADHOC-III), KASARAGODE CC.585/2005 of JUDL. FIRST CLASS MAGISTRATE COURT-II, KASARAGODE .................................................. REVN. PETITIONER(S): APPELLANT/ACCUSED: ------------------------------------------------------------------------- JANARDHANA, S/O.CHANDRAN NAIR, AINKURAM VEEDU, KOTTOOR P.O., MULIYAR VIA, KASARAGOD. BY ADV. MR. T.G.RAJENDRAN RESPONDENT(S): COMPLAINANT & STATE: ------------------------------------------------------------------- 1. KAISAR PASHA, S/O.N.S.RAHIM PASHA, MYSORE ELECTRONICS, PADY ROAD, CHERKALA, CHENGALA P.O., KASARAGOD. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR. C.M. NAZAR 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.2266 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 issued a cheque for Rs.1,00,000/- on 26.12.2002, towards the discharge of a debt due to the complainant, and when the above cheque presented for encashment the same was dishonoured as there was “no sufficient funds” 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 Crl. R.P.No.2266/2010 2 complainant approached the Judicial First Class Magistrate Court (Addl. Munsiff), Kasarkodu, upon which cognizance was taken u/s.138 of Negotiable Instruments Act instituted C.C.585/2005 and thereafter the case was made over to the Judicial First Class Magistrate Court-I, Kasarkode where the case is renumbered as C.C.1363/2005 and again the case was made over to JFCM, (Addl. Munsiff), Kasarkod wherein the case is again renumbered as C.C.585/2005. During the trial of the case, PW1 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. Accordingly the court found that, the complainant has Crl. R.P.No.2266/2010 3 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 him to pay an amount of Rs.1,00,000/-, to the complainant as compensation u/s.357(3) of Cr.P.C and the default sentence is fixed as 3 months simple imprisonment. Though an appeal was filed by the accused, by judgment, dated 04.05.2009 in Crl.Appeal No.213/2007, the Court of Addl. District and Sessions Judge (Adhoc- III), Kasarkode dismissed the appeal confirming the conviction and sentence ordered by the trial court. 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 Crl. R.P.No.2266/2010 4 of the courts below. 4. 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. 5. The counsel for the revision petitioner submitted that, some breathing time may be granted to the revision petitioner to deposit 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 allowed with slight enhancement of the Crl. R.P.No.2266/2010 5 compensation amount, and the revision petitioner can be permitted to pay the amount directly to the complainant. 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. In the present case, the cheque in question is dated 26.12.2002, for an amount of Rs.1,00,000/-. The above amount is with the revision petitioner for the last 8 years. Considering the above facts and legal position, I am of the view that, the sentence of imprisonment ordered by the courts below can be modified and the compensation amount can be enhanced slightly giving 3 months time to pay the same. In the result, this revision petition is disposed of confirming the conviction against the revision petitioner Crl. R.P.No.2266/2010 6 u/s.138 of Negotiable Instruments Act as recorded by the courts below. Accordingly, the sentence of imprisonment, ordered by the courts below is modified and reduced to simple imprisonment for one day that till rising of the court and the revision petitioner is directed to pay a sum of Rs.1,10,000/- (Rupees One lakh ten 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 remitting the same in the trial court which ever subjected to the satisfaction of the learned Magistrate. Crl. R.P.No.2266/2010 7 In case any failure on the part of the revision petitioner in appearing before the court below as directed above and 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