IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 26TH OCTOBER 2010 / 4TH KARTHIKA 1932 Crl.Rev.Pet.No. 3134 of 2010() -------------------------------------------- CRA.670/2008 OF SPECIAL ADDITIONAL SESSIONS COURT (MARADU CASES),KOZHIKODE ST.841/2007 OF SPECIAL JUDICIAL FIRST CLASS MAGISTRATE COURT (MARADU CASES),KOZHIKODE .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------------------------------------------- VINOD T., S/O.KUNHIKRISHNAN VAIDYAR, E.P./5/318, KUNIYIL HOUSE, ERAMALA, KOZHIKODE DISTRICT. BY ADV. SRI.K.B.ARUNKUMAR RESPONDENT(S): RESPONDENTS/STATE & COMPLAINANT -------------------------------------------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. ICICI BANK LTD., SHAFEER COMPLEX, KANNUR ROAD, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER AND COLLECTION MANAGER, ANISH K.GEORGE. R1 BY PUBLIC PROSECUTOR SMT. P.N. SUMANGALA. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sou. V.K. MOHANAN, J ---------------------- Crl.R.P.No.3134 OF 2010 ----------------------------------- Dated this the 26th day of October, 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 against him by the courts below. 2. The case of the complainant is that the accused/revision petitioner, availed a loan from the complainant Bank and towards the discharge of the liability arose out of that transaction, the accused issued Ext.P3 cheque dated 08.05.2007 for an amount of Rs.57,612/-, which when presented for encashment, dishonoured due to the reason that there was no sufficient fund in the account maintained by the accused and the cheque amount was not repaid in spite of formal demand notice and thus the revision petitioner has committed the offence punishable under section 138 of Negotiable Instruments Act. With the said allegation, the complainant approached the Special Judicial First Class Magistrate Court (Marad Cases), Kozhikode, by filing a formal complaint, Crl.R.P. No.3134/10 2 upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.841/2007. During the trial of the case, PW1 was examined from the side of the complainant and Exts.P1 to P6 were marked. No evidence adduced from the the defence side. 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 the debt due to the complainant. Thus accordingly, the court held 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 accused/revision petitioner to undergo simple imprisonment for one month and also directed him to pay a compensation of Rs.57,612/- to the complainant u/s.357(3) of Cr.P.C. The default sentence is fixed as one month simple imprisonment. 3. Though an appeal was filed at the instance of the accused/revision petitioner, by judgment dated 12.05.2010 in Criminal Appeal No.670/2008, the Court of Special Additional Sessions Judge (Marad Cases), Kozhikode dismissed the appeal confirming the conviction and sentence. Crl.R.P. No.3134/10 3 4. I have head 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. The counsel for the revision petitioner further submitted that the courts below has committed wrong in convicting the revision petitioner. 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 Negotiable Instruments Act, is approved. 6. As this court is not inclined to interfere with the order of conviction recorded by the courts below, learned counsel for the revision petitioner submitted that sentence of imprisonment ordered by the courts below is exorbitant and unreasonable. It is also submitted that breathing time may be granted to the revision petitioner0 to pay compensation amount, which submission according to me can be considered favourably. 7. The cheque involved in this case is for an amount of Crl.R.P. No.3134/10 4 Rs.57,612/- and as per the findings of court below, which approved by this court, the said amount belongs to the complainant but the same is with the revision petitioner till now. The apex court in the 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. Considering the above facts and settled legal position, I am of the view that the revision petitioner can be given some time to pay the amount. The court below has already issued a direction to the accused to compensate the complainant by paying the cheque amount. Considering the above facts and circumstances, I am of the view that sentence of imprisonment ordered by court below can be modified and one month time can be granted to the revision petitioner to pay the compensation amount. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner u/s 138 of Negotiable Instruments Act, as recorded by the courts below. Accordingly the sentence of imprisonment ordered boy the courts below is modified and reduced to one day simple imprisonment ie., till raising of court. Accordingly the revision petitioner is directed to pay sum of Rs.57,612/- as compensation to the complainant as Crl.R.P. No.3134/10 5 fixed by the trial court, within one month from today and it is made clear that the default sentence fixed by the appellate court will be attracted only in case of default in paying the compensation within one month from today. Accordingly the revision petitioner is directed to appear before the trial court on 26.11.2010 to receive the modified sentence and to pay compensation amount. If there is any failure on the part of the revision petitioner in paying the compensation amount, the trial court is free to take coercive steps to secure the presence of the petitioner and to execute the sentence and for realisation of the amount. Coercive steps if any pending against revision petitioner shall be deferred till 26.11.2010. This criminal revision petition is disposed of accordingly. V.K. MOHANAN, JUDGE. Sou. Crl.R.P. No.3134/10 6