IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 8TH NOVEMBER 2010 / 17TH KARTHIKA 1932 Crl.Rev.Pet.No. 3086 of 2010 (A) ------------------------------ (CRA.614/2008 of ADDL. DIST. & SESSESSIONS FAST TRACK (ADHOC-II) KOZHIKODE ST.100/2007 of SPECIAL JUDL. FIRST CLASS MAGISTRATE (MARAD CASE) KOZHIKODE). .................... REVN. PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------- UNNIKRISHNAN VAYALAKKARA, S/O.RARUNNI, AGED 36 YEARS, D.H.L. EXPRESS PRIVATE LTD., ANUGRAHA BUILDINGS, MULLASSERY CANAL ROAD. BY ADV. SRI.V.N.RAMESAN NAMBISAN RESPONDENT/RESPONDENT/COMPLAINANT: -------------------------------------------------------------------- 1. K.NIRMALA, W/O.PREM KUMAR, VAYALAKKARA HOUSE, PANNIYANKARA, KALLAI P.O., KOZHIKODE - 3. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADVS. SRI.SRINATH GIRISH 0 SRI.E.NARAYANAN R2 BY PUBLIC PROSECUTOR, SRI.SUMANGALA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.3086 of 2010 ------------------------------- Dated this the 8th day of November, 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.40,000/- and towards the discharge of the said liability, the accused issued a cheque dated 11.9.2006 for a sum 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 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 Court of Special Judl. First Class Magistrate (Marad cases)-Kozhikode, by filing a formal complaint, 2 Crl. R.P.No.3086 of 2010 upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.100/07. During the trial of the case, PW1, the complainant herself was examined from the side of the complainant and Exts.P1 to P5 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 1 month and also directed the revision petitioner to pay a sum of Rs.40,000/- to the complainant as compensation u/s.357(3) of Cr.P.C., failing which the revision petitioner was directed to undergo simple imprisonment for 1 3 Crl. R.P.No.3086 of 2010 month. 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 5.3.2010 in Crl.A.614/08, the Court of Addl. District & Sessions Judge, Fast Track Court (Ad hoc-II), Kozhikode, dismissed the appeal, confirming the conviction and sentence imposed against the accused by the trial court. 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. The learned counsel for the revision petitioner vehemently argued that the revision petitioner has succeeded in establishing the probable case in terms of his defence and thereby rebutted the presumption, but the trial court as well as the appellate court miserably failed to consider the defence version. In support of the above submission, the learned counsel pointed out that the specific case set up by the defence 4 Crl. R.P.No.3086 of 2010 is to the effect that, the revision petitioner has obtained a sum of Rs.20,000/- as hand loan from the brother of the complainant and at the time of receiving the said amount, two cheques were issued and the brother of the complainant has instituted S.T.No.1355/06 against the revision petitioner, which case was subsequently withdrawn on 31.12.2007 on settlement of the dispute. According to the learned counsel, the present case is instituted at the instance of the brother of the complainant by misusing the other cheque which entrusted with him. In support of the submission made by the learned counsel, he had heavily relied upon the decision of the Apex court reported in Kumar Exports Vs. Sharma Carpets (2009 (2) SCC 513). 6. I am unable to sustain the above contentions. As indicated earlier, absolutely no evidence was adduced from the side of the defence. Nothing brought on record to show that the cheque in question is the one which entrusted with the brother of the complainant, as alleged by the revision petitioner. At this juncture it is relevant to note the observations and findings 5 Crl. R.P.No.3086 of 2010 arrived on by the courts below which read as, “what prevented the revision petitioner for getting back the cheque in question, if his claim is true, that the amount allegedly obtained from the brother of the complainant was repaid and then the other case was withdrawn”. Agreeing with the findings and the observations made by the courts below, I am of the view that, the revision petitioner has miserably failed to establish the defence case and thereby failed to rebut the presumption. Therefore, the concurrent findings of the court below is not liable to be interfered with and on the other hand the same required to be approved. Accordingly, I approve the conviction recorded by the courts below. 7. As this court is not inclined to interfere with the conviction recorded by the courts below, the learned counsel for the revision petitioner submitted that the sentence of imprisonment imposed against the revision petitioner is unreasonable and exorbitant and it require to be set aside and 6 Crl. R.P.No.3086 of 2010 also submitted that, some breathing time may be granted 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 positively but subject to other facts and circumstances involved 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 11.9.2006, that too for an amount of Rs.40,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.40,000/- which belonged to the complainant is with the revision petitioner for the last 4 years. Considering the above facts and settled legal position, I am of the view that the sentence of imprisonment ordered against the revision petitioner can be modified and reduced and while granting some time to 7 Crl. R.P.No.3086 of 2010 the revision petitioner to pay the compensation, the amount can be enhanced slightly. 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 awarded by the courts below is modified and reduced to one day simple imprisonment ie., till the rising of the court. Whereas, the compensation amount ordered by the appellate court u/s.357(3) of Cr.P.C. is enhanced to the tune of Rs.48,350/-, which shall be paid by the revision petitioner, within 3 months from today and in case of default in paying the compensation amount within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for 2 months. Accordingly, the revision petitioner is directed to appear before the trial court on 9.2.2011, 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 8 Crl. R.P.No.3086 of 2010 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. The execution of warrant if any, pending against the revision petitioner shall be deferred till 9.2.2011. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/