IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 26TH JULY 2010 / 4TH SRAVANA 1932 Crl.Rev.Pet.No. 2230 of 2010() ----------------------------------------------- CRA.69/2006 of ADDL.SESSIONS COURT (ADHOC)III, TRIVANDRUM ST.488/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, ATTINGAL .................................................. REVN. PETITIONER(S): APPELLANT/ACCUSED: ------------------------------------------------------------------------- S.PRAKASH, KUNNATHU VEEDU, NELLIKUNNAM.P.O., KOTTARAKKARA. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE: ---------------------------------------------------------------------------------------------- 1. P.R.BALACHANDRAN, S/O.RAMAN PILLAI, MOHANA VILASOM, ANAKUDI.P.O., VAMANAPURAM VILLAGE, THIRUVANANTHAPURAM, PIN 695 606. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR. C.M. NAZAR. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2230 of 2010 ------------------------------------------------- Dated this the 26th day of July, 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, towards the discharge of a debt due to the complainant, issued a cheque dated 28.10.2003 for a sum of Rs. 1,00,000/-(Rupees One lakh only) which when presented for encashment dishonoured as there was “no sufficient funds” 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 same allegation, the Crl. R.P.No.2230/2010 2 complainant approached the Judicial First Class Magistrate Court-II, Attingal by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.488/04. During the trial of the case, PW1 was examined from the side of the complainant and Exts.P1 to P6 were marked. From the side of the defence, Dws 1 to 3 were examined and Ext.D1 was 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/appellant to undergo Crl. R.P.No.2230/2010 3 simple imprisonment for 1 month and also ordered to pay a compensation of Rs.1,03,000/- (Rupees One lakh three thousand only) to the complainant u/s.357(3) of Cr.P.C and the default sentence is fixed as simple imprisonment for 2 months. 3. Aggrieved by the above order of conviction and sentence, the revision petitioner had approached the court below by filing an appeal. But by judgment dated 19.03.2010 in Crl.A.No.69/2006, the Court of Addl. Sessions Judge (Fast Track-III) Thiruvananthapuram, allowed the appeal only in part and thus while confirming the conviction, the sentence is modified and reduced till rising of the court and to pay of compensation of Rs.1,03,000/-. Default sentence is fixed as 2 months simple imprisonment. Accordingly the lower appellate court, granted time to the revision petitioner up to 21.06.2010 to receive the sentence and to pay the compensation. Crl. R.P.No.2230/2010 4 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 conviction recorded by the courts below against the revision petitioner u/s.138 of Negotiable Instruments Act, is approved. 6. The counsel for the revision petitioner submitted that sentence imposed by the courts below is highly exorbitant and unreasonable. It is also submitted that some breathing time may be granted to the revision Crl. R.P.No.2230/2010 5 petitioner to pay the compensation amount. 7. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered positively. The cheque in question is dated 28.10.2003 that too for an amount of Rs.1,00,000/-. Thus as per the records and finding of the court below, an amount of Rs.1,00,000/- which belonged to the complainant is with the revision petitioner for the last 7 years. Considering the above facts, I am of the view that while granting some time, the compensation amount can be enhanced slightly. 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. Considering the above facts and legal position, I am of the view that, while maintaining the sentence of imprisonment Crl. R.P.No.2230/2010 6 ordered against the revision petitioner by setting aside the sentence of fine, the revision petitioner can ordered to pay a compensation to the complainant u/s.357(3) of Cr.P.C. 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 as well as the lower appellate court. Accordingly, the sentence of imprisonment ordered by the lower appellate court against the revision petitioner is confirmed and the revision petitioner is directed to pay a sum of Rs.1,10,000/- (Rupees One lakh ten thousand only) to the complainant as compensation u/s.357(3) of Cr.P.C within 3 months from today and in default he is directed to undergo simple imprisonment for a period of 3 months. The revision petitioner is free to pay the compensation amount, as ordered by this court, either directly to the complainant or by remitting Crl. R.P.No.2230/2010 7 the same in the trial court which ever subjected to the satisfaction of the trial court. The revision petitioner is directed to appear before the trial court on 26.10.2010 to receive the sentence and to pay the compensation. In case of any failure, 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. Sd/- V.K.MOHANAN, Judge. ss/