IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 2ND JULY 2010 / 11TH ASHADHA 1932 Crl.Rev.Pet.No. 1903 of 2010(E) ------------------------------- CRA.261/2003 of ADDL.SESSIONS COURT [FAST TRACK-III (ADHOC)], MANJERI ST.13867/2000 of JUDL. MAGISTRATE OF FIRST CLASS, MALAPPURAM .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED :- -------------------------------------------------------------------- THOTTOLI MOHAMMED,S/O.KUNHEEDU, THOTTOLI HOUSE,PAZHAMALLOOR POST, KOTTILANGADI(VIA), MALAPPURAM. BY ADV. SRI.VINOD VALLIKAPPAN RESPONDENT(S)/RESPONDENTS/COMPLAINANT/STATE :- ----------------------------------------------------------------------------------- 1. STAE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. MADAKKAL UNNEEN,S/O.MADAKKAL CHECKU, MADAKKAL HOUSE,THAKAMPARA,KOTTAKAL POST, MALAPPURAM. R1 BY PUBLIC PROSECUTOR MR.M.R.VENUGOPAL R2 BY SMT.S.SUMITHA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ~~~~~~~~~~~~~ Crl.R.P.No.1903 of 2010 ~~~~~~~~~~~~~~~~~ Dated this the 2nd day of July 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 towards the discharge of a debt due to the complainant, the accused issued a cheque dated 2.6.2000 for an amount of Rs.85,000/-, 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 in spite of a formal demand notice and thus the revision petitioner has committed the offence punishable u/s.138 of the Negotiable Instruments Act. With the said allegation, the complainant Crl.R.P.No.1903 of 2010 : 2 : approached the Judicial First Class Magistrate, Malappuram by filing a formal complaint, upon which cognizance was taken u/s.138 of the Negotiable Instruments Act and instituted S.T.No.13867/2000. During the course of the trial PWs.1 and 2 were examined from the side of the complainant and produced Exts.P1 to P9 documentary evidences. Even though there was no defence witness, the accused has produced Exts.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 his debt due to the complainant. Thus accordingly the court held 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 the Negotiable Instruments Act. On such conviction, the trial court sentenced the revision petitioner/accused to undergo simple imprisonment for two months and to pay a sum of Rs.85,000/- as compensation to the complainant under Crl.R.P.No.1903 of 2010 : 3 : Sec.357(3) of Cr.P.C. and default sentence is fixed as one month simple imprisonment. 3. Though an appeal was filed challenging the above conviction and sentence, by judgment dated 31.7.2006 in Crl.A.No.261/2003, the court of Additional Sessions Judge, Manjeri [Fast Track Court-III (Adhoc)] dismissed the appeal confirming the conviction and sentence imposed against the revision petitioner by the trial court. 4. The learned counsel for the revision petitioner submitted that the sentence of imprisonment may be set aside and a breathing time may be granted to the revision petitioner to pay the compensation amount. 5. 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 facts and circumstances involved in the case. As per the records and findings of the courts below, which approved by this Court, a sum of Rs.85,000/- belonging to the complainant is with the revision petitioner for the last 10 years. The Apex Court in Crl.R.P.No.1903 of 2010 : 4 : the decision in Damodar.S.Prabhu v. Sayed Babalal.H [J.T. 2010 (4) SC 457] has held that in the case of dishonour of cheques, the compensatory aspect of the remedy shall be given preference than the punitive aspect. Considering the above facts and circumstances and the above settled position of law, I am of the view that the sentence of imprisonment can be reduced and at the same time, the amount of compensation as well as the default sentence can be enhanced slightly. In the result, this revision petition is disposed of confirming the conviction as recorded by the trial court against the revision petitioner under Sec.138 of the N.I.Act. Accordingly, the sentence of imprisonment ordered by the court below is reduced to one day ie; till the rising of the court and the revision petitioner is directed to pay a sum of Rs.90,000/- to the complainant under Sec.357(3) of Cr.P.C. and in case any failure in paying the amount, the revision petitioner is directed to undergo simple imprisonment for a period of 6 months. The revision petitioner is free to pay the above amount of compensation to the complainant directly or Crl.R.P.No.1903 of 2010 : 5 : by remitting the same in the trial court, however, subject to the satisfaction of the learned Magistrate. Accordingly, the revision petitioner is directed to appear before the trial court on 4th October, 2010 to receive the sentence and to pay the compensation amount as directed 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 deposit 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. V.K.MOHANAN, JUDGE. Jvt