IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 8TH SEPTEMBER 2010 / 17TH BHADRA 1932 Crl.Rev.Pet.No. 3430 of 2009() ----------------------------- CRA.7/2008 OF ADDL. DISTRICT & SESSIONS (ADHOC) FAST TRACK COURT-III, PATHANAMTHITTA ST 312/2005 OF CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA ................... REVISION PETITIONER / APPELLANT / ACCUSED: --------------------------------------------------------------------- AYOOBKHAN, AGED 33 YEARS, S/O.HASSAN MOHAMMED, RESIDING AT ALANKARATHU PUTHEN VEEDU, KULASEKHARAPATHI, PATHANAMTHITTA. BY ADVS. SRI. K.SHAJ SRI.SAJJU.S RESPONDENTS / COMPLAINANT / STATE: ----------------------------------------------------------- 1. IDICULLA JOHN, NIRAVATHU KIZHAKKEDATHU VEEDU, NANNUVAKKADU MURI, PATHANAMTHITTA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 BY ADV. SRI.V.SETHUNATH R2 BY PUBLIC PROSECUTOR SMT. SUMANGALA P.N. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn V.K.MOHANAN, J. ------------------------------------------ Crl.R.P. No. 3430 of 2009 ---------------------------------------- Dated the 8th Day of September, 2010 ORDER The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the revision petitioner as he is aggrieved by the conviction and sentence imposed against him as per the impugned judgment. 2. The case of the complainant is that the accused borrowed an amount of Rs.45,000/- from the complainant and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 17.3.2005 for the said amount which when presented for encashment, dishonoured as there was no sufficient fund in the account maintained by the accused and the revision petitioner/accused miserably failed to repay the cheque amount in spite of a formal notice caused to issue by him. With the said allegation, the complainant approached the Chief Judicial Magistrate Court, Pathanamthitta by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted S.T.C. No.312/2005. During the course of trial, the complainant himself mounted to the box and adduced oral evidence as PW1. CRL.R.P.3430/09 2 He has also produced Exts.P1 to P5 as documentary evidence. From the side of the defence, DW1 and DW2 were examined and also produced Ext.D1. After evaluation of the evidence and the materials on record, the trial court has found that Ext.P1 cheque was issued towards the discharge of a legally enforceable debt that due to the complainant and accordingly, the trial court held that the complainant has succeeded in establishing the allegation against the revision petitioner-accused and found that the revision petitioner-accused is guilty. Consequently, the accused is convicted under section 138 of the N.I.Act. On such conviction, the trial court sentenced the revision petitioner- accused to undergo simple imprisonment for 3 months and to pay a fine of Rs.60,000/-. The default sentence is fixed as simple imprisonment for two months. It is also ordered that on realisation of the fine amount, a sum of Rs.50,000/- shall be paid to the complainant as compensation under section 357(1)(b) Cr.P.C. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 28th July, 2009 in Crl.A.No.7/2008, the CRL.R.P.3430/09 3 court of Addl. District & Sessions Judge, (Adhoc) Fast Track Court- III, Pathanamthitta, dismissed the appeal confirming the conviction and sentence passed by the trial court. It is the above judgments of the trial court as well as the lower appellate court challenged in this Crl.R.P. 3. Reiterating the contention taken by the defence during the trial and appellate stages, the learned counsel submitted that the complainant has not established the transaction, execution and issuance of the cheque and therefore, the courts below are absolutely wrong in convicting the revision petitioner-accused imposing sentence against him. The trial court as well as the lower appellate court has concurrently found in favour of the complainant and against the revision petitioner-accused. Though the revision petitioner is heard elaborately, nothing is brought out to take a different view to interfere with the concurrent findings of the courts below. All the contentions are based upon the facts and evidence on record which were elaborately considered by the courts below. Therefore, I find no reason to interfere with such concurrent finding of the courts below and accordingly, the CRL.R.P.3430/09 4 conviction recorded by the courts below is confirmed. 4. As this Court is not inclined to interfere with the order of conviction, the learned counsel for the revision petitioner submitted that the sentence of imprisonment ordered by the courts below is unreasonable and exorbitant and the same may be set aside and also submitted that a breathing time may be granted to the revision petitioner to pay the fine amount. 5. In the light of the facts and circumstances involved in the case, I am of the view that the said submission can be considered favourably, but subject to other relevant inputs involved in this case. As per the records and the findings of the courts below which approved by this court, the cheque in question is dated 17.3.2005, that too, for an amount of Rs.45,000/- and thus the said amount is due to the complainant which is with the revision petitioner for the last 5 years. 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. considering the above facts CRL.R.P.3430/09 5 and circumstances involved in this case and the in the light of the above settled legal position I am of the view that the sentence of imprisonment can be modified and while granting some time to the revision petitioner to pay the fine, the fine amount can be enhanced slightly. In the result, this Crl.R.P is disposed of confirming the conviction recorded by the courts below for the offence under section 138 of the N.I.Act . Accordingly, in modification of the sentence of imprisonment recorded by the courts below, the same is reduced to one day imprisonment, i.e., till the rising of the court. Thus, while maintaining the sentence to pay fine ordered by the courts below, the fine amount is enhanced to Rs.57,500/- which shall be deposited within three months from today and in case of any default in depositing the fine amount, within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for a period of three months. Accordingly, the revision petitioner is directed to appear before the trial court on 8th December, 2010 to receive the sentence and to deposit the fine amount. If there is any default on the part CRL.R.P.3430/09 6 of the revision petitioner in appearing before the trial court as directed above, the trial court is free to take coercive steps against the revision petitioner to secure his presence and to execute the sentence of imprisonment as well as fine. On realisaiton of the fine amount, a sum of Rs.55,000/- shall be paid to the complainant as compensation under section 357(1)(b) Cr.P.C and the remaining amount shall be deposited into the State Ex chequer. Coercive steps if any pending shall be deferred till 8.12.2010. This Crl.R.P is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- CRL.R.P.3430/09 7 O.P.No. JUDGMENT Dated:..