IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 3RD SEPTEMBER 2010 / 12TH BHADRA 1932 Crl.Rev.Pet.No. 2618 of 2010() --------------------------------------- CRA.78/2009 of ADDL. SESSIONS COURT FAST TRACK No.II, PALAKKAD ST.443/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PALAKKAD .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED :- ------------------------------------------------------------------ PURUSHOTHAMAN, S/O.KOCHUNNY, H.NO.369/A RLY COLONY KALLEKKULANGARA P.O. OLAVAKKODE, PALAKKAD. BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL) RESPONDENT(S)/RESPONDENTS/COMPLAINANT AND STATE :- ----------------------------------------------------------------------------------------- 1. MAJEED, S/O.SAMAD, 4/196, THAZHE MURALIYIL, INDUSTRIAL ESTATE, PUDUPPARIYARAM, PALAKKAD. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.SUMANGALA P.N. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ----------------------------- Crl.R.P.No.2618 of 2010 --------------------------------- Dated this the 3rd day of September 2010 O R D E R The accused in a prosecution for an offence u/s.138 of the 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.40,000/- from the complainant and towards the discharge of the debt due to the complainant, he issued a cheque dated 4.11.2006 for an amount of Rs.40,000/-, 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 Crl.R.P.No.2618 of 2010 -: 2 :- and thus the revision petitioner has committed the offence punishable u/s.138 of the Negotiable Instruments Act. With the said allegation, the complainant approached the Judicial Magistrate of First Class-I, Palakkad, by filing a formal complaint, upon which cognizance was taken u/s.138 of the Negotiable Instruments Act and instituted S.T.No.443/2007. During the trial of the case, the complainant himself was examined as PW1, and produced Exts.P1 to P3 documents. No evidence either oral or documentary 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 held that the accused is guilty and thus convicted him u/s.138 of the Negotiable Instruments Act. On such conviction, the trial Crl.R.P.No.2618 of 2010 -: 3 :- court sentenced the revision petitioner to undergo simple imprisonment for 6 months and also directed him to pay a compensation of Rs.40,000/- to the complainant u/s.357(3) of Cr.P.C. and the default sentence is fixed as two months simple imprisonment. 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 4.6.2010 in Crl.A.No.78/2009, the Court of Addl. Sessions Judge Fast Track Court No.II, Palakkad, dismissed the appeal, confirming the conviction and sentence imposed by the court below. It is the above conviction and sentence are 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. 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 Crl.R.P.No.2618 of 2010 -: 4 :- sentence of imprisonment ordered against the revision petitioner is not reasonable and exorbitant and the same may be set aside and it is also the submission of the learned counsel for the revision petitioner that a breathing time may be granted to the revision petitioner 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 favourably but subject to other relevant facts and circumstances involved in the case. 6. As per the records the cheque in question is dated 4.11.2006 that too for an amount of Rs.40,000/- and as per the findings of the courts below which approved by this Court, the said amount belonging to the complainant is with the revision petitioner for the last 4 years. 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 Crl.R.P.No.2618 of 2010 -: 5 :- aspects. Considering the above settled legal position and the facts referred above, I am of the view that the sentence of imprisonment ordered against the revision petitioner can be modified and while granting some time to pay the compensation, the amount can be enhanced slightly. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner u/s.138 of the Negotiable Instruments Act as recorded by the courts below. Accordingly, the sentence of imprisonment ordered against the revision petitioner is modified and reduced to one day simple imprisonment ie; till the rising of the court and the revision petitioner is further directed to pay a sum of Rs.45,000/- within three months from today as compensation to the complainant u/s.357(3) of Cr.P.C. and in case any default in paying the amount within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for a period of three months. Accordingly the revision petitioner is directed to appear Crl.R.P.No.2618 of 2010 -: 6 :- before the trial court on 3rd December, 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 the court below as directed above and in making the payment of 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. V.K.MOHANAN, JUDGE. Jvt