IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 26TH NOVEMBER 2010 / 5TH AGRAHAYANA 1932 Crl.Rev.Pet.No. 3211 of 2004(B) ------------------------------- CRA.357/2001 of ADDL. SESSIONS COURT (ADHOC-2), THRISSUR ST.5201/2001 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THRISSUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- E.P.JOSEPH, S/O. POULOSE, ELINJELIL HOUSE, ROOM NO.85, SAKTHAN THAMPURAN MARKET, THRISSUR. BY ADV. SRI.DILIP J. AKKARA RESPONDENT(S): RESPONDENTS/COMPLAINANT -------------------------------------- 1. JOSE GEORGE C., CHERPUKKARAN HOUSE, MISSION QUARTERS, THRISSUR. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.G.SREEKUMAR (CHELUR) FOR R1 R2 BY PUBLIC PROSECUTOR SHRI.PUZHAKKARA MUHAMMED THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/11/2010, THE COURT ON 26/11/2010 PASSED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 3211 of 2004 - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of November, 2010 O R D E R This revision petition is filed by the accused in S.T.No. 5201 of 1998 on the file of the Judicial First Class Magistrate Court -II, Thrissur. The first respondent herein is the complainant in that case, which was filed alleging commission of the offence under Section 138 of the N.I. Act involving a cheque for Rs.20,400/- 2. In the trial court the accused was convicted under Section 138 of the N.I. Act and sentenced to undergo S.I. for three months. The appeal filed by the accused as Crl.A.No. 357 of 2001 on the file of the Additional Sessions Court (Fast Track Court-II), Thrissur was dismissed confirming the conviction and sentence. Against that judgment the accused filed this revision petition. Crl.R.P.No. 3211 of 2004 2 3. Heard learned counsel for the revision petitioner and the learned counsel for the first respondent. 4. The case of the complainant is that the accused borrowed Rs.20,400/- from him on 1.11.1997 and the accused issued Ext.P1 cheque for that amount. When it was presented for encashment, it was dishonoured due to insufficiency of funds in the account of the accused and the complainant issued lawyer notice to the accused intimating the dishonour of the cheque and demanding the amount. But the accused did not repay any amount or send any reply. 5. According to the accused, he borrowed Rs. 15,000/- from the complainant agreeing to pay interest and repaid the principal amount and towards interest he issued Ext.P1 cheque for Rs.2,040/- The complainant altered the cheque for Rs. 20,400/- by adding another '0' and writing his name and amount in words and instituted a false complaint against the accused. 6. The learned counsel for the revision petitioner invited my attention to the decision of this Court reported in Ramachandran v. Dinesan (2005 (1) KLT 353), in which it was held that: Crl.R.P.No. 3211 of 2004 3 “When the amount once written is corrected without the knowledge and consent of maker of the cheque, that amounts to material alteration. If there is material alteration in the cheque, it amounts to cancellation void and no criminal prosecution can be launched on it.” 7. In that case, the trial court and the appellate court found that there was material alteration in the cheque by adding the figure '1'. But in the present case, the trial court and the appellate court concurrently found that there was no material alteration in Ext.P1 cheque. Since both the courts concurrently found that there is no material alteration in Ext.P1 cheque, I find no reason to take a different view. 8. The courts below have concurrently held that the cheque in question was drawn by the petitioner in favour of the complainant, that the complainant had validly complied with clauses (a) and (b) of the proviso to Section 138 of the N.I. Act and that the revision petitioner/accused failed to make the payment Crl.R.P.No. 3211 of 2004 4 within 15 days of receipt of the statutory notice. Both the courts have considered and rejected the defence set up by the revision petitioner while entering the conviction. The said conviction has been recorded after a careful evaluation of the oral and documentary evidence. I do not find any error, illegality or impropriety in the conviction so recorded concurrently by the courts below and the same is hereby confirmed. 9. In the decision reported in Damodar S. Prabhu v. Sayed Babalal H (2010(2) KHC 428 (SC)), it was held that in a case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. Considering the facts and circumstances of the case, I am of the view that sentencing the accused to pay a fine of Rs.21,000/- would meet the ends of justice. The said fine shall be paid as compensation under Section 357(1) of Cr.P.C. The revision petitioner is permitted either to deposit the said fine amount before the Court below or directly pay the compensation to the complainant within three months from Crl.R.P.No. 3211 of 2004 5 today and to produce a memo to that effect before the Trial Court in case of direct payment. If he fails to deposit or pay the said amount within the aforesaid period, he shall suffer simple imprisonment for three months by way of default sentence. The amount if any deposited in the trial court by the accused can be given credit to. 10 . In the result, this revision petition is disposed of as above. (M.L. JOSEPH FRANCIS) Judge tm