IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 3RD JUNE 2010 / 13TH JYAISTHA 1932 Crl.Rev.Pet.No. 1610 of 2010() ------------------------------ CRA.250/2008 of ADDL. SESSIONS COURT-II, MAVELIKKARA CC.159/2005 of JUDL.MAGISTRATE OF FIRST CLASS,, CHENGANNUR .................... REVN. PETITIONER: REVN.PETITIONER/APPELLANT/ACCUSED ------------------------------------------------------ ANILKUMAR, KALLEPARAMBIL, ALA NORTH, ALA VILLAGE, CHENGANNUR, NOW RESIDING AT VAYALIL PUTHEN VEEDU, PERUMPUZHA, KOLLAM. BY ADV. SRI.IYPE JOSEPH RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. M.K.JACOB, MANIKKASSERI HOUSE, ALA NORTH, ALA VILLAGE. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT. PUSHPALATHA M.K. BY ADV. SRI.R.T.PRADEEP FOR R1 & SRI.V.VIJULAL FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.R.P. No. 1610 OF 2010 ---------------------------------------- Dated the 3rd Day of June, 2010 ORDER This Crl.Revision Petition is preferred by the accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act as he is aggrieved by the order of conviction and sentence imposed against him. 2. The case of the complainant against the revision petitioner is that the revision petitioner/accused approached the complainant for a loan of Rs.30,000/- for his personal purpose and after receiving the amount, he issued a cheque for Rs.30,000/- dated 1.12.2004 and when the said cheque presented for encashment, it was dishonoured for the reason that 'account closed'. Accordingly, the complainant caused to send a lawyer notice to the revision petitioner informing him the dishonour of the cheque and also demanding the amount. As there was no payment, the complainant CRL.R.P. 1610/10 -:2:- approached the trial court by filing a formal complaint upon which cognizance was taken for the offence under section 138 of the N.I.Act and instituted C.C.No.159/2005. During the trial, the complainant himself was examined as PW1 and he had also produced Exts.P1 to P6 documents to establish his case. No evidence is adduced from the side of the defence. The trial court after considering the case of the complainant and the defence version, came into a conclusion that the complainant has succeeded in proving the offence under section 138 of the N.I.Act against the accused and accordingly, he is found guilty and convicted under section 138 of the N.I.Act. On his conviction, the revision petitioner is sentenced to undergo simple imprisonment for 3 months and also directed to pay a compensation of Rs.30,000/- to the complainant under section 357(3) Cr.P.C. In appeal, filed against the above conviction and sentence, by judgment dated 23.6.2009 in Crl.A.No.250/2008, the court of Addl. Sessions Judge II, Mavelikara, dismissed the same CRL.R.P. 1610/10 -:3:- confirming the conviction and sentence awarded against the revision petitioner. It is the above judgments of the courts below and the conviction and sentence are challenged in this revision. 3. I have heard the learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. 4. On a consideration of the arguments advanced by the learned counsel for the revision petitioner and on perusal of the impugned judgment, it can be seen that the revision petitioner/accused has admitted the execution and issuance of the cheque, though not as claimed by the complainant. According to the revision petitioner/accused, he entrusted the cheque in question with the complainant as a security when his father-in-law availed a loan from the complainant. Thus according to him, such cheque is misused in the present case for filing the complainant. The only attempt made in this regard is when PW1 was cross examined. No evidence was adduced by the CRL.R.P. 1610/10 -:4:- accused to substantiate his plea. No other circumstances also brought on record to accept the case of the accused and to reject the case of the complainant. It was in the above factual background, the trial court as well as the lower appellate court arrived on their own finding and convicted the revision petitioner. The finding of the courts below appears to be correct and no interference is called for when the revision petitioner has miserably failed to make out a case to that effect. Thus, the conviction endorsed by the courts below is confirmed. 5. The learned counsel for the revision petitioner submitted that a breathing time may be granted to the revision petitioner to make the payment and also submitted that the sentence of imprisonment awarded against the revision petitioner is disproportionate to the offence alleged against him and sought a lenient approach in the matter of sentence also. 6. I have carefully considered the above submission, but I am of the view that such submission CRL.R.P. 1610/10 -:5:- can be considered favourably subject to other facts and circumstances involved in the case. It is also to be noted that the cheque in question is dated 1.12.2004, that too, for an amount of Rs.30,000/-. As per the records, thus a sum of Rs.30,000/- which belongs to the complainant is with the revision petitioner for the last more than 5 years. It is also to be noted that the conviction and sentence awarded by the trial court was confirmed by the lower appellate court and the compensation fixed is to be paid to the complainant under section 357(3) Cr.P.C. The Apex Court, in its recent decision in Damodar S.Prabhu v. Sayed Babalal H (J.T.2010 (4) SC 457), has held that in a case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. In the light of the above settled legal position and in view of the facts and circumstances referred to above, I am of the view that the sentence of imprisonment imposed upon the revision petitioner can be reduced to simple imprisonment till the rising of the court CRL.R.P. 1610/10 -:6:- and at the same time, he can be sentenced to pay a fine considering the fact that the amount covered by the cheque in question is with the revision petitioner right from 1.12.2004 and also the said amount can be ordered to be paid as compensation to the complaisant under section 357(1)(b) Cr.P.C. In the result, this Crl.R.P is disposed of confirming the conviction recorded by the trial court as well as the lower appellate court for the offence under section 138 of the N.I.Act . The substantive sentence of imprisonment imposed against the revision petitioner is set aside and he is sentenced to pay a fine of Rs.35,000/- and in default he is directed to undergo simple imprisonment for a period of 6 months and on realisation of the fine amount, the same shall be paid to the complainant under section 357(1)(b) Cr.P.C. Accordingly, the revision petitioner is directed to appear before the trial court on 3rd September, 2010. If there is any default on the part of the revision petitioner in appearing before the trial court as directed above, the CRL.R.P. 1610/10 -:7:- trial court is free to take coercive steps against the revision petitioner to secure his presence and to execute the sentence and for realisation of the amount. V.K.MOHANAN, JUDGE. Kvm/- CRL.R.P. 1610/10 -:8:- O.P.No. JUDGMENT Dated:..