IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932 Crl.Rev.Pet.No. 2181 of 2010() ------------------------------ CRA.204/2009 of SESSIONS COURT, KOTTAYAM ST.NO.1462/2007 of JUDICIAL FIRST CLASS MAGISTRATE COURT IV, KOTTAYAM. .................... PETITIONER/APPELLANT/ACCUSED: ----------------------------------------------------- RANCHANANTHAN.C.N, S/O.NARAYANAN CHATHYANKAL HOUSE,AYARKUNNAM.P.O, KOTTAYAM. BY ADV. SRI.P.CHANDY JOSEPH RESPONDENT(S): RESPONDENTS:COMPLAINANT AND STATE: ---------------------------------------------------------------------------------------------- 1. THE KOTTYAM DISTRICT CO-OPERATIVE BANK LTD., REPRESENTED BY ITS PAMPADY BRANCH MANAGER, PAMPADY,KOTTAYAM. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA. R1 BY ADV. SRI.T.A.SHAJI, SC, KOTTAYAM DISTRICT CO-OP.BANK. R2 BY PUBLIC PROSECUTOR SRI. VENUGOPAL.M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2181 of 2010 ------------------------------- Dated this the 28th 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 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 repayment of the amount, the accused issued a cheque dated 7.8.2007 for an amount of Rs.46,220/-, 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 Negotiable Instruments Act. With the same allegation, the complainant approached the Judicial First Class Magistrate Court-IV, Kottayam, by filing a formal Crl. R.P.No.2181 of 2010 2 complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.1462/07. During the trial of the case, PW1, the complainant himself, was examined from the side of the complainant and Exts.P1 to P8 were marked. No evidence either oral or documentary 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 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 to undergo simple imprisonment for one month and to pay a fine of Rs.46,220/- for the offence punishable u/s.138 of NI Act and the default sentence is fixed as 1 month simple imprisonment. It is also directed that if the fine Crl. R.P.No.2181 of 2010 3 amount is realised it is to be paid as compensation to the complainant u/s.357(1)(b) of Cr.P.C. 3. Though an appeal was filed, at the instance of the revision petitioner/accused by judgment dated 5.12.2009 in Crl.A.204/09, the Court of Sessions, Kottayam Division, dismissed the appeal, confirming the conviction and sentence of the revision petitioner u/s.138 of Negotiable Instruments Act. It is the above conviction and sentence 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 Crl. R.P.No.2181 of 2010 4 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. In the present case, the liability arose out of a loan transaction between the accused and the complainant which is a co-operative institution. The counsel for the revision petitioner submitted that, some breathing time may be granted to deposit the compensation amount. I am of the view that the said submission can be considered favourably but subject to other relevant materials and circumstances involved in the case. 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 present case, the cheque in question is dated 7.8.2007, that too for an amount of Rs.46,220/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Crl. R.P.No.2181 of 2010 5 Rs.46,220/- is in the hands of the revision petitioner for the last 3 years. Considering the above facts and legal position, I am of the view that, the sentence of imprisonment can be set aside and the revision petition can be disposed of making nominal enhancement with respect to the fine amount and granting 3 months time to pay the same. In the result, this revision petition is disposed of confirming the conviction and sentence imposed against the revision petitioner u/s.138 of Negotiable Instruments Act as recorded by the courts below. Accordingly, the sentence of imprisonment ordered against the revision petitioner is set aside whereas the sentence of fine imposed by the courts below is confirmed but the fine amount is enhanced to Rs.47,000/-, which shall be paid within 3 months from today and in case of default in paying the fine amount the revision petitioner is directed to undergo simple imprisonment for 1 month. Accordingly, the revision petitioner is directed to pay the fine amount on or before 28.10.2010, as directed above. In case any failure on the part of the revision Crl. R.P.No.2181 of 2010 6 petitioner in depositing the fine amount, on or before 28.10.2010, 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 and also to realise the fine amount. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/