IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 8TH OCTOBER 2010 / 16TH ASWINA 1932 Crl.Rev.Pet.No. 2940 of 2010() ------------------------------------ CRA.475/2006 of ADDL. SESSIONS COURT (ADHOC), THRISSUR CC.929/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------ ANILKUMAR.M.P., S/O.PAVITHRAN, MYNTHARA HOUSE, ARAKULAM WEST, METHALA, KODUNGALLUR. BY ADVS. SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN RESPONDENT(S): COMPLAINANT: --------------------------------------- 1. SUBRAMANIAN, S/O.SANKU, KOREMPARAMBIL HOUSE, ARAKULAM SOUTH, METHALA, KODUNGALLUR. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADVS. SRI.PAUL ANTONY MANIAMKOT SRI.V.A.SATHEESH KUMAR R2 BY PUBLIC PROSECUTOR SMT. P.N. SUMANGALA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SVS/ V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2940 of 2010 ------------------------------------------------ Dated this the 8 th day of October, 2010. O R D E R The accused in a prosecution for the offence under section138 of the Negotiable Instruments Act,1881 (for short ‘the N.I Act’) approached this Court by preferring the above revision petition challenging his conviction and sentence, imposed as per judgments of the trial court as well as the lower appellate court. 2. The case of the first respondent/complainant against the accused/revision petitioner is that towards the discharge of the liability due to the complainant, the accused issued a cheque dated 06.05.2004 for a sum of Rs.30,000/-(Rupees Thirty thousand only), which when presented for encashment, was dishonoured for want of sufficient fund in the account maintained by the revision petitioner and the revision petitioner failed to pay the cheque amount, even though he was requested Crl. R.P. No. 2940/2010 2 for the same by issuing a statutory notice. With the said allegation, the complainant approached the Court of Judicial Magistrate of First Class, Kodungalloor, whereupon C.C.No.929/2004 was instituted taking cognizance for the offence u/s.138 of Negotiable Instruments Act. During the trial of the above case, the first respondent/complainant adduced his evidence consisting of the documentary evidence such as Exts.P1 to P6 and the oral evidence of himself as PW1. No evidence either oral or documentary was 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 he is convicted u/s.138 of Negotiable Crl. R.P. No. 2940/2010 3 Instruments Act. On such conviction, the trial court sentenced the revision petitioner/appellant to undergo simple imprisonment for a period of three months and pay a compensation of Rs.40,000/- to the complainant under Section 357(3) of Cr.P.C. and the default sentence is fixed as six months simple imprisonment. 3. Though an appeal was filed against the above conviction and sentence, by the revision petitioner/accused, as per judgment dated 24.02.2009 in Crl.A.No.475/2006, the Court of Addl. District and Sessions Judge, Fast Track Court No. I, Thrissur dismissed the appeal confirming the conviction and the sentence imposed against the revision petitioner u/s. 138 of Negotiable Instruments Act. It is the above conviction, sentence and direction to pay the compensation, challenged in this Crl.R.P. 4. I have heard learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. Crl. R.P. No. 2940/2010 4 5. Reiterating the stand taken by the defence during the trial as well as the appellate stage, the learned counsel for the revision petitioner submitted that the complainant has not established the transaction, execution and issuance of the cheque. The above submission is purely on the basis of the facts, evidence and materials on record which are already considered in detail by the trial court as well as the lower appellate court. The petitioner miserably failed to make out a case so as to interfere with such concurrent findings arrived on by the courts below. Therefore, the conviction recorded by the courts below is only required to be approved. I do so. 6. Learned counsel for the revision petitioner submitted that a breathing time may be granted to the revision petitioner to pay the compensation. Learned counsel for the revision petitioner also submitted that the sentence of imprisonment ordered by the courts below is unreasonable, which requires interference of Crl. R.P. No. 2940/2010 5 this court. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered positively, considering the other facts and circumstances involved in the case. 7. 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. Though the cheque in question is dated 06.05.2004, the courts below have fixed the compensation as Rs.40,000/-. Considering the above facts and legal position, I am of the view that, the sentence of imprisonment can be modified slightly and two months time granted to the revision petitioner to pay the compensation to the complainant u/s.357(3) of Cr.P.C. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner Crl. R.P. No. 2940/2010 6 u/s.138 of Negotiable Instruments Act as recorded by the courts below. Accordingly, the sentence of imprisonment now ordered by the lower appellate court is modified and reduced to one day simple imprisonment that is, till the rising of the court. While maintaining the direction to pay the compensation, the amount is enhanced to Rs.42,000/- (Rupees Forty two thousand only) which shall be paid by the revision petitioner within two months from today and in case of any default in paying the amount within the above period, the revision petitioner is directed to undergo simple imprisonment for six months and on realisation of the compensation amount, the entire amount shall be paid to the complainant under Section 357(3) of the Cr.P.C. Accordingly, the revision petitioner/accused is directed to appear before the trial court on 08.12.2010 to receive the modified sentence and to deposit the compensation amount. It is made clear that the revision petitioner is free to pay the compensation amount Crl. R.P. No. 2940/2010 7 either directly to the complainant or by remitting the same in the trial court. In case any failure on the part of the revision petitioner in appearing before the trial court and making the deposit of compensation amount on the above date, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence. Coercive steps, if any, pending against the revision petitioner shall be deferred till 08.12.2010. Criminal revision petition is disposed of accordingly. Sd/- V.K.MOHANAN, Judge. ss/. //True copy// P.A to Judge