IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 30TH SEPTEMBER 2010 / 8TH ASWINA 1932 Crl.Rev.Pet.No. 2756 of 2010() ------------------------------ (CRA.615/2006 of I ADDL. SESSIONS COURT, KOLLAM CC.269/2005 of JUDL.MAGISTRATE OF FIRST CLASS-I, KOTTARAKKARA ) .................... REVISION PETITIONER(S)/ACCUSED/ACCUSED -------------------------------------------------------- GEORGE MATHEW, S/O.MATHAI AGED 46 YEARS, ANUGRAHA, MELIAVILLAGE, CHENGAMANADU, KOTTARAKKARA, KOLLAM. BY ADVS. SRI.K.S.MANU (PUNUKKONNOOR) SRI.P.SREEKUMAR RESPONDENT(S): RESPONDENTS /COMPLAINANT --------------------------------------------------------- 1. STATE OF KERALA, REP. BY THE DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. 2. O.JOHN, CHARUVILAVEEDU, CHENGAMANADU, KOTTARAKKARA, KOLLAM-688 501. R1 BY PUBLIC PROSECUTION SMT.P.N.SUMANGALA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SVS/ V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2756 of 2010 ------------------------------- Dated this the 30th day of September, 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 borrowed a sum of Rs.50,000/- from the complainant and towards the discharge of the debt due to the complainant, he issued a cheque dated 8.10.2004 for a sum of Rs.50,000/-, 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 said allegation, the complainant approached the Judl. First Class Magistrate Court-I, Kottarakara, by filing a formal complaint, upon 2 Crl. R.P.No.2756 of 2010 which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.269/05. During the trial of the case, the complainant himself was mounted to the box and gave evidence as PW1 and Exts.P1 to P5 were marked, from the side of the complainant. 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 1 month and also directed to pay a compensation of Rs.50,000/- and the default sentence is fixed as 2 months simple imprisonment. 3 Crl. R.P.No.2756 of 2010 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 17.12.2009 in Crl.A.615/06, the Court of Addl. Sessions Judge - Kottarakara, allowed the appeal only in part and thus while confirming the conviction, the sentence of imprisonment is modified and reduced to till the rising of the court. The direction to pay compensation and the default sentence are confirmed. 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 4 Crl. R.P.No.2756 of 2010 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. As this court is not inclined to interfere with the order of conviction recorded by the courts below, the counsel for the revision petitioner submitted that, some breathing time may be granted to pay the compensation amount. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered positively but subject to other relevant inputs 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 8.10.2004, for an amount of Rs.50,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.50,000/-, which belonged to the 5 Crl. R.P.No.2756 of 2010 complainant is with the revision petitioner for the last 6 years. So, while granting some time to pay the compensation amount, the amount can be enhanced slightly. 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, while confirming the sentence of imprisonment as modified and fixed by the appellate court, the revision petitioner is directed to pay a sum of Rs.60,000/- to the complainant as compensation u/s.357(3) of Cr.P.C., within 3 months from today and in case of any default in paying the compensation amount within the period stipulated by this court, the revision petitioner is directed to undergo simple imprisonment for 2 months. Accordingly, the revision petitioner is directed to appear before the trial court on 30.12.2010, to receive the sentence of imprisonment and to pay the compensation amount, as fixed by this court and the revision petitioner is free to pay the compensation amount either directly to the complainant or by 6 Crl. R.P.No.2756 of 2010 remitting the same in the court below, which ever subject to the satisfaction of the learned Magistrate of the trial court. In case any failure on the part of the revision petitioner in appearing before the court below as directed above and in paying the 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. Coercive steps if any, pending against the revision petitioner shall be deferred till 30.12.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/