IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 19TH AUGUST 2010 / 28TH SRAVANA 1932 Crl.Rev.Pet.No. 2515 of 2010() ------------------------------ CRA.391/2009 of ADDL. DISITRICT AND SESSIONS JUDGE(ADHOC-III), N.PARAVUR ST.3826/2005 of JUDICIAL MAGISTRATE OF FIRAST CLASS - II, PARAVUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- T.E.NIRMALAN, S/O.ETTAMAN, AGED 60, KANIYARIKKAL, THAIVELIKAKATH HOUSE, THATHAPPILLY P.O., N.PARAVUR, ERNAKULAM DISTRICT. BY ADV. SRI.R.KRISHNAKUMAR (CHERTHALA) RESPONDENT(S): STATE & COMPLAINANT ---------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.S.GOPI, S/O.SANKARAN, KAVALAMCHERY HOUSE, JANATHA ROAD, ALUVA, ERNAKULAM DISTRICT PUBLIC PROSECUTOR SRI.VENUGOPAL.M.R. - R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN,J --------------------- Crl.R.P.No.2515 of 2010 ------------------------------------ Dated this the 19th day of August,2010 O R D E R The accused in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') approached this Court by preferring the above revision petition challenging her conviction and sentence, imposed as per judgments of the trial court as well as the lower appellate court. 2. The case of the respondent/complainant against the accused/revision petitioner is that towards the discharge of a debt due to the complainant, the accused issued a cheque dated 10.5.2005 for a sum of Rs.85,000/- which, when presented for encashment, was dishonoured for want of sufficient fund in the account maintained by the revision petitioner and the petitioner failed to pay the cheque amount, even though he was requested for the same by issuing a statutory notice. With the said allegation, the complainant approached the Judicial First Class Magistrate Court-II, North Paravur whereupon S.T.No.3826/2005 was instituted taking cognizance for the offence under Section 138 of the N.I. Act. During the trial of the Crl.R.P.No.2515 of 2010 2 above case, the 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 courts held that, the complainant has established the case against the revision petitioner/accused and consequently, found that the accused is guilty and thus, he is convicted under Section 138 of the N.I.Act. on such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment for 3 months u/s.138 of N.I.Act and also directed him to pay a fine of Rs.85,000/- and failing which he is directed to undergo simple imprisonment for 3 months. It is also ordered that if the fine amount is realised the whole amount shall be paid as compensation to the complainant under Section 357(1) Cr.P.C. 3. Though an appeal was filed against the above conviction and sentence, by the revision petitioner/accused, as per judgment Crl.R.P.No.2515 of 2010 3 dated 15.6.2010 in Crl.Appeal No.391/2009, the Court of Addl. District & Sessions Judge, (Adhoc-III), North Paravur dismissed the appeal confirming the conviction and sentence. the learned counsel for the revision petitioner is submitted that the sentence of imprisonment ordered by the court below is unreasonable and exorbitant. 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. 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 Crl.R.P.No.2515 of 2010 4 approved. I do so. 6. The learned counsel for the revision petitioner submitted that the sentence of imprisonment ordered by the court below is unreasonable and exorbitant and also submitted that a breathing time may be granted to the revision petitioner to pay the fine amount ordered by the courts below. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered favourably. 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 10.5.2005, for an amount of Rs.85,000/-. Thus, as per the records and the findings of the courts below, which approved by this Court, a sum of Rs.85,000/-, is due to the complainant from 10.5.2005. Considering the above facts and legal position, I am of the view that, the sentence of imprisonment ordered by court below can be modified and inspite of depositing fine, revision petitioner can be directed to pay compensation to the Crl.R.P.No.2515 of 2010 5 complainant within a reasonable time, subject to slight enhancement from the cheque amount. 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 trial court. Accordingly, the sentence of imprisonment, ordered by the court below is reduced and the revision petitioner is directed to undergo simple imprisonment for one day till the rising of the court. Accordingly inspite of paying fine, revision petitioner is directed to pay a sum of Rs.1,00,000/- as compensation to the respondent/complainant u/S.357(3) of Cr.P.C within three months from today. In case of any default the revision petitioner is directed to undergo simple imprisonment for a period of 3 months. Accordingly, the revision petitioner is directed to appear before the trial court on 16.11.2010 to receive the sentence and to pay the amount. In case, any failure on the part of the revision petitioner in appearing before the court below as directed above and 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 Crl.R.P.No.2515 of 2010 6 execution of warrant if any pending against the revision petitioner shall be referred till 16.11.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, JUDGE. pm