IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 9TH JUNE 2010 / 19TH JYAISTHA 1932 Crl.Rev.Pet.No. 1724 of 2010() ------------------------------ CRA.155/2008 of SESSIONS COURT, KALPETTA STC.151/2006 of JUDL.MAGISTRATE OF FIRST CLASS-II, MANANTHAVADY .................... REVN. PETITIONER: PETITIONER/APPELLANT/ACCUSED ------------------------------------------------- JOSEPH V.U., S/O.ULAHANNAN, VAYALIL PULIYANIKAL HOUSE, VALAD P.O., THALAPUZHA. BY ADV. SRI.V.M.KURIAN SRI.MATHEW B. KURIAN SRI.K.T.THOMAS RESPONDENT(S): RESPONDENTS/COMPLAINANT -------------------------------------- 1. SREE GOKULAM CHITS & FINANCE COMPANY PVT.LTD, REP. BY LEGAL ASSISTANT V.T.MANOJAN, MANANTHAVADY BRANCH, MANANTHAVADY. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.RAJ MOHAN R.PILLAI FOR R1 SMT.D.MINI RAJAN FOR R1 R2 BY P.P. SMT.PUSHPALATHA M.K. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.R.P. No. 1724 of 2010 ---------------------------------------- Dated the 9th Day of June, 2010 ORDER The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the revision petitioner and he is challenging his conviction and sentence imposed by the courts below. 2. The case of the complainant against the revision petitioner/accused is that the revision petitioner was a subscriber in group No.G3D 85/18 to the Chitty conducted at the Mananthavady branch of the complainant chitty company. An amount of Rs.19,338/- was due from the accused. In discharge of the above liability, the revision petitioner/accused issued a cheque dated 12.5.2005 for the said amount and when the cheque presented for encashment, it was dishonoured as there was no sufficient fund in the account maintained by the accused. With the above CRL.R.P.1724/10 -:2:- allegation, the complainant approached the Judicial First class Magistrate-II, Mananthavady by filing a complaint upon which cognizance was taken under section 138 of the N.I.Act and instituted S.T.C No.151 of 2006 in that court. During the trial, from the side of the complainant , PW1 was examined and produced Exts.P1 to P5, and DWs 1 and 2 were examined from the side of the defence and Exts. D1 and D2 documents were also produced. After considering the entire materials on record, the trial court found that the complainant has established the case against the accused and accordingly, the revision petitioner is convicted under section 138 of the N.I.Act and sentenced him to simple imprisonment till the rising of the Court and to pay a sum of Rs.19,350/- to the complainant as compensation under section 357(3) Cr.P.C. The default sentence fixed as simple imprisonment for two months. 3. Challenging the above conviction and sentence, CRL.R.P.1724/10 -:3:- the revision petitioner/accused had preferred an appeal and by judgment dated 9.11.2009 in Crl.A.No.155/2008, the Court of Sessions, Wayanad, dismissed the appeal confirming the conviction but enhancing the substantive sentence of imprisonment for a period of three months and also directed the accused to pay a sum of Rs.20,000/- as compensation to the complainant and, in default, to undergo simple imprisonment for three months. It is also directed by the lower appellate court that if the compensation amount is remitted, it shall be paid to the complainant. It is the above conviction and sentence imposed by the courts below challenged in this revision petition. 4. The learned counsel for the revision petitioner submitted that the lower appellate court imposed a higher sentence against the revision petitioner who approached the lower appellate court aggrieved by the conviction and sentence imposed by the trial court. At the CRL.R.P.1724/10 -:4:- time of disposing of the appeal, the lower appellate court confirmed the conviction and modified and enhanced the substantive sentence of imprisonment and also enhanced the compensation amount awarded by the trial court. According to the learned counsel, the said approach of the lower appellate court is highly arbitrary and illegal and against the provisions under section 386 (b) Cr.P.C. It is also submitted by the learned counsel that on the basis of the impugned judgment, revenue recovery proceedings was initiated and accordingly, the revision petitioner-accused has already deposited a sum of Rs.20,000/- with the revenue authorities being the compensation amount and the same has already been paid to the complainant in terms of the direction contained in the impugned judgment. The above submission is not controverted by the counsel appearing for the respondent/complainant. 5. Counsel for the respondent-complainant CRL.R.P.1724/10 -:5:- submitted that as the complainant has already received a sum of Rs.20,000/- being the compensation amount as fixed by the lower appellate court, the complainant is not interested in further prosecuting the matter. 6. Having regard to the facts and circumstances involved in the case, and as the compensation amount as ordered by the lower appellate court has already deposited by the revision petitioner, I am of the view that this revision petition can be disposed of confirming the conviction imposed against the revision petitioner and setting aside the sentence of imprisonment awarded against the revision petitioner. 7. In the result, this Crl.R.P is disposed of confirming the conviction recorded by the trial court as well as the lower appellate court against the revision petitioner under section 138 of the N.I.Act. Considering the subsequent development that taken place after the impugned judgments, and during the pendency of the CRL.R.P.1724/10 -:6:- revision petition, particularly, when the revision petitioner has paid the entire amount of compensation ordered by the trial court and as modified by the lower appellate court, I am of the view that the sentence of imprisonment can be set aside, especially, in the light of the decision of the Apex Court in the decision in Damodar S.Prabhu v. Sayed Babalal H (JT 2010(4) SC 457), wherein it is held that in case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. Accordingly, the sentence of imprisonment imposed against the revision petitioner is set aside and the order of the lower appellate court to pay a compensation of Rs.20, 000/- is confirmed. It is made clear that, as indicated earlier, due to the subsequent development, the compensation amount has already been deposited, there is no question of further payment of the compensation amount to the complainant and no question of default sentence. CRL.R.P.1724/10 -:7:- Therefore, I have no hesitation to record the realisation and payment of the amount of compensation. There will be a direction to the trial court to repay the amount of Rs.2000/- which he had already deposited in that court, and if the same is retained therein in pursuance of the order dated 22.7.2008 in Crl.M.A. No.1410/2008 of the Sessions Court, Wayanad. This Crl.R.P is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- CRL.R.P.1724/10 -:8:- O.P.No. JUDGMENT Dated:..