IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 23RD SEPTEMBER 2010 / 1ST ASWINA 1932 Crl.Rev.Pet.No. 3103 of 2007(C) -------------------------------------------- [CRL.A. NO. 332/2006 OF THE III ADDL. DISTRICT & SESSIONS COURT, THODUPUZHA, ST.NO.23/2006 OF JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THODUPUZHA] .................... PETITIONER/APPELLANT/ACCUSED: ----------------------------------------------------- SATHEESH KURIAN, AGED 43 YEARS, S/O KURIAN, VALANJATTIL HOUSE, PUTHANANGADY, KOTTAYAM, NOW RESIDING AT HI0016 SURABHI NAGAR, KAKKANAD P.O., ERNAKULAM. BY ADVS. SRI.SREELAL N.WARRIER, SMT.SILVI JOSEPH. RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: ------------------------------------------------------------------------------------ 1. BABU THOMAS, CHAONAL HOUSE, KOLANI, THODUPUZHA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 BY ADV. SRI.JOSHI N.THOMAS, R2 BY PUBLIC PROSECUTOR SRI. V. TEKCHAND. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/09/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.3103 of 2007 ------------------------------- Dated this the 23rd day of September, 2010. O R D E R The accused in a prosecution for an offence u/s.138 of 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 the accused/revision petitioner borrowed a sum of Rs.1,00,000/- from the complainant and towards the discharge of the debt due to the complainant, he issued a cheque dated 15.7.2005 for a sum of Rs.1,00,000/-, 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 inspite of a formal demand notice and thus the revision petitioner has committed the offence punishable u/s.138 of Negotiable Instruments Act. With the said allegation, the complainant initially approached the Chief Judl. Magistrate Court-Thodupuzha, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable 2 Crl. R.P.No.3103 of 2007 Instruments Act and instituted C.C.No.564/05 and subsequently, the case was made over to the Court of Judicial First Class Magistrate-II, Thodupuzha, wherein the case was renumbered as S.T.No.23/06. During the trial of the case, the complainant himself was mounted to the box and gave evidence as PW1 and Exts.P1 to P5 were marked, from the side of the complainant. From the side of the defence, Dws.1 to 4 and Exts.D1, D2 and C1 were marked. 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 convicted him u/s.138 of Negotiable Instruments Act. On such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment for 3 months and also directed to pay compensation of Rs.1,05,000/- to the complainant u/s.357(3) of 3 Crl. R.P.No.3103 of 2007 Cr.P.C. and the default sentence was fixed as 3 months simple imprisonment. 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 25.6.2007 in Crl.A.332/06, the Court of 3rd Addl. District & Sessions Judge- Thodupuzha, dismissed the appeal, confirming the conviction and sentence imposed against the revision petitioner. 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 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 4 Crl. R.P.No.3103 of 2007 revision petition and accordingly the conviction recorded by the courts below against the revision petitioner u/s.138 of Negotiable Instruments Act, is approved. 6. As this court is not inclined to interfere with the order of conviction recorded by the courts below, the counsel for the revision petitioner submitted that, the sentence of imprisonment ordered by the courts below is unreasonable and exorbitant and the same may be set aside and the counsel for the revision petitioner also submitted that, the revision petitioner is ready to compensate the complainant by paying a compensation amount which is to be fixed by this court. The learned counsel for the respondent submitted that, the complainant is very much interested in getting his amount back but with adequate compensation. 7. 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 5 Crl. R.P.No.3103 of 2007 aspects. In the present case, the cheque in question is dated 15.7.2005, for an amount of Rs.1,00,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.1,00,000/-, which belonged to the complainant is with the revision petitioner for the last 5 years. Having regard to the facts and circumstances involved in the case and in the light of the submissions made by both side's counsels, I am of the view that, the sentence of imprisonment ordered by the courts below can be set aside and the revision petitioner can be sentenced to pay fine only. 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, in suppression of the order of sentence for imprisonment ordered by the courts below, the revision petitioner is sentenced to pay a fine amount of Rs.1,30,000/-, within one month from today and in case of any default in paying the fine amount, the revision petitioner is directed to undergo simple 6 Crl. R.P.No.3103 of 2007 imprisonment for 3 months. Accordingly, the revision petitioner is directed to deposit the fine amount on or before 23.10.2010 in the trial court. In case any failure on the part of the revision petitioner in paying 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. On realisation of the fine amount, a sum of Rs.1,25,000/- shall be paid to the complainant as compensation u/s.357(1)(b) of Cr.P.C. and the remaining amount shall be paid to the State Exchequer. The coercive steps if any, pending against the revision petitioner shall be deferred till 23.10.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/