IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 11TH OCTOBER 2010 / 19TH ASWINA 1932 Crl.Rev.Pet.No. 2980 of 2010() ------------------------------ CRA.883/2008 of SPECIAL ADDL.SESSIONS COURT (MARADU CASES), KOZHIKODE ST.1826/2006 of SPECIAL JUDL. FIRST CLASS MAGISTRATE (MARAD CASES), KOZHIKODE. .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED :- ------------------------------------------------------------------- STEPHEN A.S., S/O.ESTHAPPAN, AGED 48 YEARS, ILAVUNGAL HOUSE, ATHYODY P.O., KOORACHUNDU, KOZHIKODE-673527. BY ADV. SRI.SIVARAM.R.MENON RESPONDENT(S)/RESPONDENT/COMPLAINANT :- --------------------------------------------------------------------- 1. EVER TRUST FINANCE LTD., 32 KRISHNAPPA TANK ST, SOWCARPET, CHENNAI, REPRESENTED BY ITS AUTHORIZED PERSON, V.RADHAKRISHNAN, S/O.LATE SHEKHARAN, 'GAYATHRI', VASUDEVAN NAIR ROAD, CHEVAYUR P.O., KOZHIKODE. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PUBLIC PROSECUTOR SMT.SUMANGALA P.N. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt V.K.MOHANAN, J. ~~~~~~~~~~~~~ Crl.R.P.No.2980 of 2010 ~~~~~~~~~~~~~~~~~ Dated this the 11th day of October 2010 O R D E R Challenge in this revision petition is against the conviction and sentence of the revision petitioner under Sec.138 of the Negotiable Instruments Act. 2. The case of the complainant is that, due to a legally enforceable debt to the complainant, the accused/revision petitioner issued a cheque dated 2.8.2006 for a sum of Rs.30,000/-, 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 the Negotiable Instruments Act. With the said allegation, the complainant approached the Special Judicial First Class Magistrate (Marad Cases), Kozhikode, by filing a formal complaint, upon which cognizance was taken u/s.138 of Crl.R.P.No.2980 of 2010 -: 2 :- the Negotiable Instruments Act and instituted S.T.No.1826/2006. During the trial of the case, PW1 was examined from the side of the complainant and Exts.P1 to P7 were marked. No evidence 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 held that the accused is guilty and thus convicted him u/s.138 of the Negotiable Instruments Act. On such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment for a period of one month and to pay a compensation of Rs.30,000/- to the complainant u/s.357(3) of Cr.P.C. and the default sentence is fixed as one month simple imprisonment and also granted time till 25.9.2008. Crl.R.P.No.2980 of 2010 -: 3 :- 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 4.5.2010 in Crl.A.No.883/2008, the Court of Special Addl. Sessions Judge (Marad Cases), Kozhikode, dismissed the appeal, confirming the conviction and sentence of the revision petitioner under Sec.138 of the Negotiable Instruments Act. It is the above conviction and sentence are 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 revision petition and accordingly the Crl.R.P.No.2980 of 2010 -: 4 :- conviction recorded by the courts below against the revision petitioner u/s.138 of the 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 learned counsel for the revision petitioner submitted that the revision petitioner has already been arrested on 10.10.2010 and now he is in jail. It is also the submission of the learned counsel that the sentence of imprisonment ordered by the court below is exorbitant and disproportionate to the allegation alleged against the revision petitioner and hence the same requires consideration. 7. The Apex Court in the decision in Damodar S.Prabhu V. Sayed Babalal H. (JT 2010(4) SC 457) held that, in the case of dishonour of cheques, the compensatory aspect of the remedy should be given priority over the punitive aspects. Therefore, I am of the view that the Crl.R.P.No.2980 of 2010 -: 5 :- sentence of imprisonment ordered against the revision petitioner can be modified and instead of directing to pay compensation as ordered by the court below, he can be directed to pay certain amount as fine considering the fact that the cheque in question pertaining to the year 2006. In the result, the conviction imposed against the revision petitioner is confirmed under Sec.138 of the Negotiable Instruments Act as recorded by the trial court. Accordingly, the sentence of imprisonment ordered by the court below is modified and reduced to one day simple imprisonment. The revision petitioner is further sentenced to pay a fine of Rs.37,000/- and the revision petitioner is granted 3 months time to deposit the fine amount. In case there is any failure on the part of the revision petitioner to deposit the fine amount within 3 months from today, he is directed to undergo simple imprisonment for a period of 3 months. The learned counsel for the revision petitioner Crl.R.P.No.2980 of 2010 -: 6 :- submitted that he is arrested on 10.10.2010 and now he is undergoing imprisonment in the District Jail, Kozhikode. As this Court has already reduced the sentence of imprisonment and time is granted to deposit the fine amount, it is only just and proper to release him from jail forthwith. If there is any failure on the part of the revision petitioner in depositing the fine amount on or before 11th January, 2011, the trial court is free to take steps to execute the sentence of fine and realization of the same. On realization of the fine amount, a sum of Rs.32,000/- shall be paid to the complainant as compensation under Sec.357(1)(b) of Cr.P.C. and the remaining amount shall be deposited in the State Exchequer. Crl. Revision petition is disposed of accordingly. V.K.MOHANAN, JUDGE. jvt