IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 8TH JULY 2010 / 17TH ASHADHA 1932 Crl.Rev.Pet.No. 1959 of 2010() ------------------------------ CRA.596/2009 of THE ADDL. SESSIONS JUDGE, (ADHOC-II), ERNAKULAM CC.2101/2007 of ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM .................... REVN. PETITIONER(S): REVISION PETITIONER ---------------------------------------- THOMAS K.GEORGE, S/O.GEORGE PROP.PHOENIX ADVERTISERS & K.THOMAS & CO 38/1882, MAVELI ROAD, GANDHI NAGAR, KADAVANTHRA, KOCHI. BY ADVS. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENT(S): --------------- 1. STATE OF KERALA, REP BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. 2. P.GANAPATHY S/O.LATE P.R.PADMANABHA IYER, H.NO.39/4872, S.A.ROAD, KOCHI-36 BY ADV.SRI.M.R.VENUGOPAL, PUBLIC PROSECUTOR. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ami/ V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1959of 2010 ------------------------------- Dated this the 8th day of July, 2010. O R D E R This revision petition is preferred by the accused in a prosecution for an offence u/s.138 of Negotiable Instruments Act, 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, towards the discharge of a debt due to the complainant, issued a cheque dated 13.11.2007 for a sum of Rs.3,00,000/- and another cheque dated 13.11.2007 for a sum of Rs.1,50,000/- and when the above cheques presented for encashment, the same were dishonoured and the cheque amount was not repaid inspite of formal demand notice and thus the revision petitioner has committed the offence punishable u/s.138 of Negotiable Instruments Act. With the same allegation, the complainant approached the Addl. Chief Judicial Magistrate Court, Ernakulam, by filing a formal complaint, upon Crl. R.P.No.1959of 2010 2 which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.2101/07. During the trial of the case, PW1, the complainant himself, was examined from the side of the complainant and Exts.P1 to P6 were marked. From the side of the defence, one witness was examined as DW1 and one document has produced which was marked as Ext.D1. 3. On conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment for 1 year and also directed to pay a sum of Rs.4,75,000/- as compensation to the complainant u/s.357(3) of Cr.P.C. and the default sentence is fixed as 6 months simple imprisonment. 4. In appeal, by judgment dated 3.4.2010 in Crl.A.No.596/09 the Court of Addl. Sessions Judge (Ad hoc-II), Ernakulam, while confirming the conviction of the revision petitioner u/s.138 of Negotiable Instruments Act, the sentence is modified and reduced. Accordingly, the revision petitioner is sentenced to undergo simple imprisonment till rising of the court and to pay a fine of Rs.4,50,000/-. It is also directed to pay the Crl. R.P.No.1959of 2010 3 fine within one month from the date of the judgment of the lower appellate court and in default in paying the amount, directed the revision petitioner to undergo simple imprisonment for 3 months. It is also ordered that on realisation of the fine amount, the entire amount shall be paid to the complainant u/s.357(1) of Cr.P.C. It is the above conviction and sentence challenged int his revision petition. 5. I have heard the learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. 6. 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 revision petition and accordingly the conviction recorded by the courts below against the revision petitioner u/s.138 of Crl. R.P.No.1959of 2010 4 Negotiable Instruments Act, is approved. 7. The counsel for the revision petitioner submitted that, some breathing time may be granted to the revision petitioner to pay the fine amount and to receive the sentence ordered by the lower appellate court. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered favourably. 8. As per the records and findings of the courts below and approved by this court an amount of Rs.4,50,000/-, which belong to the complainant is with the revision petitioner for the last 3 years. When the trial court ordered compensation, the amount was fixed as Rs.4,75,000/-, whereas the lower appellate court when the amount of compensation ordered u/s.357(3) of Cr.P.C., converted it into compensation u/s.357(1)(b) of Cr.P.C. and the amount is reduced and fixed as only Rs.4,50,000/-, which is equivalent to the cheque amount. Now the revision petitioner seeks 6 months time to pay the amount. The apex court in a recent decision reported in Damodar S.Prabhu V. Crl. R.P.No.1959of 2010 5 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. Thus considering the above legal position and other relevant factual inputs, I am of the view that while granting 6 months time to the revision petitioner, the fine amount can be enhanced to the tune of Rs.4,85,000/-. 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, while confirming the sentence of imprisonment, as modified and ordered by the lower appellate court, the sentence of fine is modified and accordingly the revision petitioner is sentenced to pay a fine of Rs.4,85,000/-, which shall be paid within 6 months from today and in default in paying the fine amount, the revision petitioner is directed to undergo simple imprisonment for 6 months. On realisation of the fine amount, a sum of Rs.4,80,000/- shall be paid to the complainant u/s.357(1) Crl. R.P.No.1959of 2010 6 (b) of Cr.P.C. and the remaining amount shall be paid to the State Exchequer. Accordingly, the revision petitioner is directed to appear before the trial court on 31.12.2010 to receive the sentence of imprisonment and to deposit the fine amount. In case any failure on the part of the revision petitioner in appearing before the court below as directed above and in depositing the fine 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/