IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 20TH SEPTEMBER 2010 / 29TH BHADRA 1932 Crl.Rev.Pet.No. 2705 of 2010(C) ------------------------------------- (CRA.461/2008 of ADDL.ASSISTANT SESSIONS COURT, PALAKKAD CC.15/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PALAKKAD) .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: ------------------------------------------------------ NARAYANAN.K.K., S/O.KUTTIRAMAN, AGED 45 YEARS, HEAD CONSTABLE, KAP IIND BATTALION, QUARTERS NO.E/41, KERALA ARMED POLICE, MUTTIKULANGRA, PALAKKAD. BY ADV.SRI. RAJESH SIVARAMANKUTTY RESPONDENT(S): COMPLAINANT & STATE: -------------------------------------------------- 1. HDFC LTD., PKM COMPLEX, 1ST FLOOR, MISSION SCHOOL JUNCTION, PALAKKAD-REP.BY K.SARATH CHANDRAN, JUNIOR LEGAL OFFICER. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.K.K.CHANDRAN PILLAI, SC, HDFC R2 BY PUBLIC PROSECUTOR SRI. V. TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SVS/ V.K. MOHANAN, J ---------------------- Crl.R.P.No.2705 OF 2010 ----------------------------------- Dated this the 20th 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 court below. 2. The case of the complainant is that the accused/revision petitioner, availed a housing loan from the complainant Company and towards the discharge of the liability arose out of that transaction, the accused issued Ext.P1 cheque dated 05.10.2006 for an amount of Rs.2,93,745/-, which when presented for encashment, dishonoured due to the reason that there was no sufficient fund in the account maintained by the accused and the cheque amount was not repaid in spite of formal demand notice and thus the revision petitioner has committed the offence punishable under section 138 of Negotiable Instruments Act. With the said allegation, the complainant approached the Judicial First Class Magistrate Court-II, Palakkad, by filing a formal complaint, Crl.R.P. No.2705/10 2 upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.15/2007. During the trial of the case, PW1 was examined from the side of the complainant and Exts.P1 to P4 were produced. No evidence from the the defence side. 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 the debt due to the complainant. Thus accordingly, the court held 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 accused/revision petitioner to undergo simple imprisonment for six months and also directed to pay compensation of Rs.2,93,745/- to the complainant u/s.357(3) of Cr.P.C. . The default sentence is fixed as two months simple imprisonment. 3. Though an appeal was filed at the instance of accused/revision petitioner, by judgment dated 31.10.2009 in Criminal Appeal No.461/2008, the Court of Sessions, Palakkad allowed the appeal only in part. Thus while confirming the conviction in suppression of the sentence of imprisonment Crl.R.P. No.2705/10 3 ordered by the trial court, the appellate court sentenced the revision petitioner to pay fine of Rs.2,93,745/- and the default sentence is fixed as one month simple imprisonment. It is also ordered that on realisation of the fine amount of Rs.2,93,745/-, same shall be given to the complainant as compensation u/s.357 (3) Cr.P.C 4. I have head 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. The counsel for the revision petitioner further submitted that the courts below has committed wrong in convicting the revision petitioner. 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. 6. As this court is not inclined to interfere with the order of conviction recorded by the courts below, learned counsel for the Crl.R.P. No.2705/10 4 revision petitioner submitted that breathing time may be granted to revision petitioner to pay fine amount, which submission according to me can be considered favourably but subject to slight enhancement with respect to the fine amount. 7. The cheque involved in this case is for an amount of Rs.2,93,745/- and as per the findings of court below, which approved by this court, the said amount belongs to the complainant but the same is with the revision petitioner till now. The apex court in the 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. On hearing the counsel appearing for both sides and considering the above facts and settled legal position, I am of the view that the revision petitioner can be given some time to pay the fine amount, but subject to slight enhancement of the amount. In the result, this revision petition is disposed of confirming the the conviction of the revision petitioner u/s 138 of Negotiable Instrument Act, as recorded by the courts below. Regarding the sentence, while maintaining the sentence to pay fine as ordered by the appellate court, the fine amount is enhanced to a sum of Rs.3,03,000/- which shall be deposited within three months from Crl.R.P. No.2705/10 5 today and in case of any default in paying the fine amount, the revision petitioner is directed to undergo simple imprisonment for a period of three months. Accordingly the revision petitioner is directed to deposit the revised fine amount of Rs.3,03,000/- on or before 20.12.2010 in the trial court. If there is any failure on the part of the revision petitioner in paying the fine amount, the trial court is free to take coercive steps to secure the presence of the petitioner and to execute the sentence and for realisation of the fine amount. On realisation of the fine amount, a sum of Rs.3,00,000/- shall be paid to the complainant as compensation u/s.357 (1) B of Cr.P.C and the remaining amount shall be deposited in State exchequer. Coercive steps if any pending against revision petitioner shall be kept in abeyance till 20.12.2010. This criminal revision petition is disposed of accordingly. V.K. MOHANAN, JUDGE. Sou.