IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 13TH AUGUST 2010 / 22ND SRAVANA 1932 Crl.Rev.Pet.No. 2376 of 2010() ------------------------------ CRA.338/2008 of SESSIONS COURT, KASARAGOD STC.1305/2007 of JUDL. MAGISTRATE OF FIRST CLASS-II, HOSDRUG .................... PETITIONER/APPELLANT/ACCUSED: ------------------------------------------------------- MUHAMMED RAIES,AGED 40 YEARS, S/O.ABDUL AZIZ, RESIDING AT V.A.HOUSE, PO KAITHAKKAD,CHERUVATHUR VILLAGE,HOSDURG TALUK, KASARAGODE DISTRICT. BY ADV. SRI.JAWAHAR JOSE RESPONDENT(S): RESPONDENTS/COMPLAINANTS & STATE: ---------------------------------------------------------------------------------------- 1. P.ABDUL KAREEM,AGED 60 YEARS, S/O.LATE MUHAMMEDKUNHI, RESIDING AT MAIMOON MANZIL,FAROOQUE NAGAR, PO KOTTAPURAM, NILESHWAR VILLAGE, HOSDURG TALUK,KASARAGOD DISTRICT. 2. THE STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R1 BY ADVS. SRI.PHILIP T.VARGHESE, SRI.THOMAS T.VARGHESE. R2 BY PUBLIC PROSECUTOR SMT. PUSHPALATHA.M.K. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2376 of 2010 ------------------------------- Dated this the 13th day of August, 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.4,00,000/- from the complainant and towards the discharge of the debt due to the complainant, he issued a cheque dated 10.6.2007 for a sum of Rs.4,00,000/-, 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-II, Hosdurg, by filing a formal Crl. R.P.No.2376 of 2010 2 complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.1305/07. During the trial of the case, PW1, the complainant himself was examined from the side of the complainant and Exts.P1 to P4 were marked. No evidence 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 6 months and to pay a compensation of Rs.4,00,000/- u/s.357(3) of Cr.P.C. and the default sentence was fixed as 3 months simple imprisonment. 3. Though an appeal was filed, at the instance of the Crl. R.P.No.2376 of 2010 3 revision petitioner/accused, by judgment dated 13.1.2010 in Crl.A.338/08, the Court of Sessions Judge, Kasaragod, allowed the appeal only in part, confirming the conviction of the revision petitioner u/s.138 of Negotiable Instruments Act and modifying and reducing the sentence to 10 days simple imprisonment and the sentence to pay compensation is confirmed and the default sentence was fixed as 6 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 the lower appellate court. Therefore, I find no merit in the Crl. R.P.No.2376 of 2010 4 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. 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 sentence of imprisonment ordered by the courts below is unreasonable and exorbitant and some breathing time may be granted 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 considered but subject to other relevant facts and circumstances 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 10.6.2007, for an amount of Rs.4,00,000/-. Thus as per the Crl. R.P.No.2376 of 2010 5 records and the findings of the courts below, which approved by this court, a sum of Rs.4,00,000/-, which belonged to the complainant is with the revision petitioner for the last 3 years. Therefore, I am of the view that the sentence of imprisonment can be reduced but at the same time, the amount fixed by the court below can be enhanced slightly and the revision petitioner can be granted sufficient time to make the payment. The learned counsel for the revision petitioner submitted that, connected with the same cheque, there was a suit at the instance of the complainant as O.S.No.170/07 before the Sub Court, Hosdurg, and the same has already been decreed against the revision petitioner and therefore in the matter of fixing the compensation amount, the same may be taken into consideration. In this proceedings, the court is concerned only with the penal liability of the revision petitioner and accordingly the courts found that the revision petitioner is guilty of the offence u/s.138 of Negotiable Instruments Act and consequently, he is liable to face the liability also. It is open for the revision Crl. R.P.No.2376 of 2010 6 petitioner to bring to the notice of the appropriate Civil Court, regarding the liability fixed by the criminal courts in these proceedings. 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 sentence of imprisonment as modified and fixed by the lower appellate court is reduced to one day simple imprisonment ie., till rising of the court and the revision petitioner is directed to pay a sum of Rs.4,15,000/- to the complainant as compensation u/s.357(3) of Cr.P.C., within 3 months from today and in case of default in paying the compensation amount, the revision petitioner is directed to undergo simple imprisonment for 6 months. Accordingly, the revision petitioner is directed to appear before the trial court on 12.11.2010, 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 Crl. R.P.No.2376 of 2010 7 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. ami/