IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 19TH JULY 2010 / 28TH ASHADHA 1932 Crl.Rev.Pet.No. 4316 of 2007() ------------------------------ CRA.686/2006 of ADDL. DISTRICT & SESSIONS JUDGE, FAST TRACK (ADHOC-II), KOZHIKODE. ST.1085/2005 of THE SPLE. JUDICIAL MAGISTRATE OF 1 CLASS, (MARAD CASES), KOZHIKODE. .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------------- T.IBRAHIM, S/O.PACHATANKKAL, PATTANI HOUSE, ANGADIPURAM, PERITHALMANNA, MALAPPURAM DISTRICT. BY ADV. SRI.U.K.DEVIDAS RESPONDENT(S): COMPLAINANT/STATE ----------------------------------------------------------- 1. EVER TRUST FINANCE (I) LTD, 32, KRISHNAPPA TANK STREET,SOWCARPET, CHENNAI, REPRESENTED BY POWER OF ATTORNEY HOLDER K.GIRISHAN S/O. LATE K. BHASKARAN, 'GREENS', PUTHIYARA, CALICUT. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. BY ADVS.SRI.C.M.NAZAR, PUBLIC PROSECUTOR, FOR R2 SRI.PRINSUN PHILIP FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ami/ V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.4316 of 2007 ------------------------------- Dated this the 19th 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 revision petitioner availed a hire purchase loan from the complainant and towards the final settlement of the due amount, the accused issued a cheque dated 5.2.2005 for an amount of Rs.2,67,600/-, which when presented for encashment dishonoured 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. 3. With the said allegation, the complainant approached the Special Judicial First Class Magistrate Court, (Marad Cases), Kozhikode, by filing a formal complaint, upon which cognizance Crl. R.P.No.4316 of 2007 2 was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.1085/05. During the trial of the case, PW1 was examined from the side of the complainant and Exts.P1 to P5 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 6 months and to pay a sum of Rs.2,67,600/- as compensation to the complainant u/s.357(3) of Cr.P.C. and the default sentence is fixed as 1 month simple imprisonment. It is also ordered that on realisation of compensation amount, it shall be paid to the complainant. 4. Though an appeal was filed, at the instance of the Crl. R.P.No.4316 of 2007 3 revision petitioner/accused by judgment dated 18.8.2007 in Crl.A.686/06, the Court of Addl. District & Sessions, Fast Track (Ad hoc-II), Kozhikode, 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. 5. I have heard the learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. 6. 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. 7. As I am not inclined to interfere with the conviction, the Crl. R.P.No.4316 of 2007 4 counsel for the revision petitioner submitted that, some breathing time may be granted to pay the amount directly to the complainant and also submitted that, the sentence imposed is exorbitant and to set aside the sentence of imprisonment. I am of the view that the said submission can be considered but subject to other relevant materials and circumstances involved in the case. 8. 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. As per the records and the findings of the courts below, which approved by this court, an amount of Rs.2,67,600/-, which belonged to the complainant is in the hands of the revision petitioner for the last 5 years. Therefore considering the above factual inputs and the settled position of law, I am of the view that the sentence of imprisonment ordered against the revision petitioner can be modified and reduced and at the very same time the amount of compensation and the default sentence Crl. R.P.No.4316 of 2007 5 ordered by the courts below can be enhanced. 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, in modification of the sentence of imprisonment ordered by the courts below, the same is reduced to one day simple imprisonment ie., till rising of the court and the revision petitioner is also directed to pay compensation of Rs.2,75,000/- to the complainant u/s.357(3) of Cr.P.C., within two weeks from today and in case of default in paying the compensation, within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for 3 months. Accordingly, the revision petitioner is directed to appear before the trial court on 3.8.2010 to pay the compensation amount and to receive the sentence, as directed by this court. The revision petitioner is free to pay the above compensation amount either directly to the complainant or by remitting the same in the trial court, which ever subject to the satisfaction of the trial court. The learned counsel submitted that, in terms of the orders issued by this court and as well as the Crl. R.P.No.4316 of 2007 6 lower appellate court at the time of suspending the execution of sentence, the revision petitioner has already deposited a sum of Rs.85,000/- and Rs.15,000/- respectively and as such altogether Rs.1 lakh is deposited in the trial court. The revision petitioner is free to withdraw the said amount of Rs.1,00,000/-, if the same is retained in the trial court and on his application, the trial court shall release the amount without any delay. In case any failure on the part of the revision petitioner in appearing before the court below as directed above and in making the deposit of compensation 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. ami/