IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 4TH AUGUST 2010 / 13TH SRAVANA 1932 Crl.Rev.Pet.No. 2341 of 2010() ------------------------------ CRA.282/2008 of Addl.Sessions & District Fast Track (ADHOC) Court-II CC.747/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, PATHANAMTHITTA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- THOMAS OOMMEN, PANACHAMOOTTIL HOUSE, VALIYAKALAYIL, NELLIMALA P.O., KUMBANADU, KOIPURAM VILLAGE, PATHANAMTHITTA. BY ADV. SRI.AJITH MURALI RESPONDENT(S): COMPLAINANT -------------------------- 1. DEEPU M.TOM, MUNDIYIL HOUSE, THELLIYUR MURI, THELLIYUR VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.VENUGOPAL.M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN,J --------------------- Crl.R.P.No.2341 of 2010 ------------------------------------ Dated this the 4th 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 his 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 is that the accused/revision petitioner, towards the discharge of a debt due to the complainant, issued a cheque dated 18.11.2005 for a sum of Rs.1,75,000/- which, when presented for encashment, was dishonoured for want of sufficinet 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 -I, Pathanamthitta whereupon C.C.No.747/2006 was instituted taking cognisance for the offence under Section 138 of the N.I.Act. During the trial of the above case, the respondent/complainant adduced his evidence consisting of the Crl.R.P.No.2341 of 2010 2 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 a period of 6 months and also directed to pay a fine of Rs.1,75,000/- and the default sentence is fixed as 3 months simple imprisonment. It is also ordered that on realisation of fine amount, it shall be paid to the complainant u/s.357(1)(b) of Cr.P.C. 3. Though an appeal was filed against the above conviction and sentence, by the revision petitioner/accused, as per judgment dated 10.06.2010 in Crl.Appeal No.282/2008, the Court of Addl. Sessions & District Fast Track (ADHOC) Court-II, Pathanamthitta dismissed the appeal confirming the conviction and sentence Crl.R.P.No.2341 of 2010 3 ordered by the trial court under Section 138 of the Negotiable Instruments Act. 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 complaiant 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. As this Court is not inclined to interfere with the conviction the counsel for the revision petitioner submitted that, the substantial sentence ordered by the courts below is unreasonable and exorbitant and some breathing time may be granted to the petitioner to deposit the amount. I am of the view that the said submission can be considered but subject to other relevant materials and circumstances involved in the case. Crl.R.P.No.2341 of 2010 4 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 aspects. In the rpesent case, the cheque in question is dated 18.11.2005, for an amount of Rs.1,75,000/-. Thus as per the records and the findings of the courts below, which approved by this Court, a sum of Rs.1,75,000/-, which belonged to the complainant, is in the hands of the revision petitioner for the last 4 years. Considering the above facts and legal position, I am of the view that, the sentence of imprisonment can be reduced to one day at the same time the fine amount can be enhanced slightly. 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, the sentence of imprisonment ordered by the courts below it is reduced that one day simple imprisonment, i.e., till rising of the court. The revision petitioner is also sentenced to pay fine of Rs.2,05,000/- within three months from today and in case of default in paying the fine within the stipulated time the Crl.R.P.No.2341 of 2010 5 revision petitioner is directed to undergo simple imprisonment for 3 months. On realisation of the fine amount a sum of Rs.2,00,000/-, shall be paid to the complainant u/s.357(1)(b) of Cr.P.C. The revision petitioner is directed to appear before the trial court on 4.11.2010 to receive the sentence and deposit the fine amount in the trial court on or before 4.11.2010. In case any failure on the part of the revision petitioner in appearing before the court below as directed above and in making the payment of 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. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, JUDGE. pm