IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 5TH OCTOBER 2010 / 13TH ASWINA 1932 Crl.Rev.Pet.No. 1985 of 2010() ------------------------------ CRA.729/2008 of II ADDL. SESSIONS COURT, PALAKKAD CC.788/2005 of JUDICIAL MAGISTRATE OF FIRST CLASS - II,OTTAPALAM .................... REVISION PETITIONER(S): APPELLANT/2ND ACCUSED: ----------------------------------------------------------------------------------- P.K.SASIKUMAR, AGED 50, S/O.M.B.NAIR, KARTHIKA, MINISSERY, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADVS. SRI.G.SREEKUMAR (CHELUR), SMT.PREETHY KARUNAKARAN, SRI.K.RAVI (PARIYARATH). RESPONDENT(S): RESPONDENTS:COMPLAINANT/STATE: --------------------------------------------------------------------------------------- 1. P.SASIDHARAN, S/O.LATE RAGHAVAN NAIR, PROPRIETOR, SASI PETROLEUM, THIRUVILLWAMALA, THALAPPILLY TALUK, SREENIKETHAN, KERALASSERI AMSOM-DESOM, PALAKKAD DISTRICT. 2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. V. TEKCHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 05/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------------------ Crl.R.P. No. 1985 of 2010 ---------------------------------------- Dated the 5th Day of October, 2010 ORDER The 2nd 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 judgments. 2. The case of the complainant is that the accused, two in number, were conducting a chitty and the complainant subscribed to chitty No. 26 for Rs.2,13,000/- and chitty No.27 for Rs.2,13,000/- and chitty No. 33 for Rs.1,12,500/- and complainant has paid the entire instalments due towards the chitties and he was entitled to get Rs.4,75,00/- from the accused and it is the further case of the complainant that towards the payment of the said amount, Ext.P1 cheque dated 26.5.2005 for a sum of Rs.4,75,000/- duly signed by both the accused issued to the complainant which when presented for encashment was dishonoured for the reason 'funds insufficient' and the accused miserably failed to CRL.R.P 1985/10 -:2:- repay the cheque amount in spite of a formal notice caused to issue by him. With the said allegation, the complainant approached the Judicial First Class Magistrate- II, Ottappalam by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted C.C.No.788/2005. During the course of trial, the complainant himself mounted to the box and adduced oral evidence as PW1. He has also produced Exts.P1 to P6(a) as documentary evidence. From the side of the defence, no evidence, either oral or documentary was produced. 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 accused and found that the accused are guilty. Consequently, the accused are convicted under section 138 of the N.I.Act. On such conviction, the trial court sentenced the accused to undergo simple imprisonment for a period of three CRL.R.P 1985/10 -:3:- months each and the accused are further directed to pay a fine of Rs.5000/- each under section 138 of the NI Act. It is also ordered that the entire fine amount if paid shall be paid to the complainant by way of compensation under section 357(1)(b) of Cr.P.C. 3. Challenging the above conviction and sentence, the revision petitioner herein, who is the 2nd accused preferred an appeal separately, and after consideration of the above appeal preferred by the revision petitioner along with the appeal of the co-accused, by a common judgment dated 8.4.2010 in Crl.A.No.729/2008 and Crl.A.No.749/2008, the learned II Addl.Sessions Judge, Palakkad dismissed both the appeals confirming the conviction and sentence imposed by the trial court. This Crl.R.P. is filed by the 2nd accused, appellant in Crl.A.No.729/2008 against the judgments of the trial court as well as the lower appellate court. 4. Reiterating the contention taken by the defence during the trial and appellate stages, the learned counsel submitted that the complainant has not established the CRL.R.P 1985/10 -:4:- transaction, execution and issuance of the cheque and therefore, the courts below are absolutely wrong in convicting the accused imposing sentence against them. The trial court as well as the lower appellate court has concurrently found in favour of the complainant and against the 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 conviction recorded by the courts below is confirmed. 5. As this court is not inclined to interfere with the conviction, the counsel submitted that the sentence of imprisonment ordered by the trial court and confirmed by the appellate court against the revision petitioner is unreasonable and exorbitant, and therefore, submitted that the same may be set aside and also submitted that a CRL.R.P 1985/10 -:5:- breathing time may be granted to the revision petitioner to pay the amount. According to me, the said submission requires consideration in the light of the facts and circumstances involved in the case. 6. As per the findings of the courts below, the complainant has paid the entire chitty instalments and towards the discharge of the liability that arose out of the chitty transaction, between the complainant on the one side and the accused on the other side, the accused issued the cheque dated 26.5.2005 for a sum of Rs.4,75,000/-. Thus as per the findings of the courts below which approved by this Court, a sum of Rs.4,75,000/- is due to the complainant and the said amount 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. So, considering the facts which I referred above and in the light of the above legal position, I am of the view that instead CRL.R.P 1985/10 -:6:- of sending the revision petitioner to jail, to meet the ends of justice, it is sufficient to confine the sentence to fine only and considering the cheque amount and also the fact that the said amount is with the revision petitioner for the last 5 years, the fine amount can be enhacned and the revision petitioner can be granted 3 months time to pay the fine amount. In the result, this Crl.R.P is disposed of confirming the conviction of the revision petitioner recorded by the trial court as well as the lower appellate court. Accordingly, in supersession of the sentence of imprisonment ordered by the trial court as well as the lower appellate court, the revision petitioner is sentenced to pay a fine of Rs.5,50,000/- (Rs. five lakhs and fifty thousand only) and he is granted three months time to deposit the fine amount in the trial court. In case of any failure in depositing the fine amount within the above period, the revision petitioner is directed to undergo simple imprisonment for a period of 6 months. Accordingly, the revision petitioner is directed to deposit the fine amount on CRL.R.P 1985/10 -:7:- or before 5th January.2011. If there is any default on the part of the revision petitioner in depositing the fine amount on or before 5.11.2011 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 and for realisation of the fine amount. On realisation of the fine amount, a sum of Rs.5.40,000/-(Rs. Five lakhs and fourty thousand only) shall be paid to the complainant as compensation under section 357(1)(b) Cr.P.c. and the remaining amount shall be deposited in the State Exchequer. Coercive steps, if any, pending against the revision petitioner shall be deferred till 5.1.2011. This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- The date “05.11.2011” occurring in the 3rd line of page 7 of the final order dated 05/10/2010 is corrected and CRL.R.P 1985/10 -:8:- substituted as 05.01.2011 as per order dated 04.01.2011 in Crl.M.A. 12371//2010 in Crl.R.P.No.1985/2010. sd/- Registrar (Judicial)