IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 22ND JUNE 2010 / 1ST ASHADHA 1932 Crl.Rev.Pet.No. 1870 of 2010() ------------------------------ CRA.312/2007 of I ADDL. SESSIONS COURT, KOLLAM ST.7/2007 of THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE-IV, KOLLAM .............................................................. REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------------------- ANIL KUMAR, LAL BHAVAN 2, SREEKRISHNA NAGAR, NEAR ESI, ASRAMAM, KOLLAM. BY ADV. SRI.AJAYA KUMAR. G RESPONDENT(S): RESPONDENTS/COMPLAINANT ---------------------------------------------------------------------- 1. MUJEEB S., JABU NIVAS, NEHRU NAGAR, PAYIKULAM, VADAKKEVILA P.O., KOLLAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SMT.PUSHPALATHA M.K., PUBLIC PROSECUTOR. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ami/ V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1870 of 2010 ------------------------------- Dated this the 22nd day of June, 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, towards the discharge of a debt due to the complainant, issued a cheque dated 26.6.2004 for a sum of Rs.35,000/-, which when presented for encashment dishonoured 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 same allegation, the complainant approached the Judicial First Class Magistrate Court-IV, Kollam, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.7/07. During the trial of the case, PW1 was examined from the side of the Crl. R.P.No.1870 of 2010 2 complainant and Exts.P1 to P7 were marked. 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 9 months and to pay a fine of Rs.38,000/- and also ordered that when the fine amount is realised, a sum of Rs.35,000/- shall be paid to the complainant as compensation, u/s.357(1) of Cr.P.C. The default sentence is fixed as 3 months imprisonment. 3. In appeal, at the instance of the revision petitioner/ accused, by judgment dated 7.4.2010 in Crl.A.No.312/07, the Crl. R.P.No.1870 of 2010 3 Court of Ist Addl. Sessions Judge, Kollam, confirmed the conviction of the revision petitioner u/s.138 of Negotiable Instruments Act. Whereas the sentence of imprisonment reduced and ordered to undergo simple imprisonment till rising of the Court and the revision petitioner is directed to pay a sum of Rs.38,000/- to the complainant u/s.357(3) of Cr.P.C. and the default sentence is fixed as 3 months simple imprisonment. 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 Crl. R.P.No.1870 of 2010 4 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. The counsel for the revision petitioner submitted that the some breathing time may be granted to deposit the fine amount. I am of the view that, the said submission can be considered favourably but subject to other relevant materials and circumstances 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 26.6.2004, for an amount of Rs.35,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.35,000/- is in the hands of the revision petitioner for the last 6 years. Considering the above facts and legal position, I am of the view that the sentence of imprisonment Crl. R.P.No.1870 of 2010 5 and order of compensation and the default sentence ordered by the lower appellate court is liable to be confirmed and the revision petitioner can be granted 3 months time to pay the fine amount. In the result, this revision petition is disposed of confirming the conviction against the revision petitioner u/s.138 of Negotiable Instruments Act and the sentence of imprisonment and order of compensation and the default sentence ordered by the lower appellate court are confirmed. Thus, the revision petitioner is sentenced to undergo simple imprisonment till rising of the court and to pay a compensation of Rs.38,000/- to the complainant and in default to undergo simple imprisonment for 3 months. Accordingly, the revision petitioner is directed to appear before the trial court on 22.9.2010 to pay the fine amount as directed by this court. In case any failure on the part of the revision petitioner in appearing before the court below as directed above and in making the deposit of fine amount, the trial court is free to take coercive steps to secure the presence of the Crl. R.P.No.1870 of 2010 6 revision petitioner and to execute the sentence awarded against the revision petitioner. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/