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. 1639 of 2010() ---------------------------- CRA.77/2009 of SESSIONS COURT, KASARAGOD CC.524/2008 of CHIEF JUDICIAL MAGISTRATE, KASARAGOD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- SRI. C.A.MOHAMMED, PROPRITER, BLUE MARINE BOTTLING COMPANY, ULIYATHADUKKA, MADHUR POST, KASARAGOD DISTRICT. BY ADV. MR.T.B.SHAJIMON SMT.GOVINDU P.RENUKADEVI RESPONDENT(S): COMPLAINANT/STATE -------------------------------- 1. M.MAMATHA, D/O. AITHAPPA NAIK REP. BY THE POWER OF ATTORNEY HOLDER, SRI. AITHAPPA NAIK, S/O. NARNU NAIK, R/AT DOOR NO. 10/63, MUNGILAPADAVU, UKKINADKA POST PERLA, KASARAGOD TALUK & DISTRICT. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR MR.VENUGOPAL M.R THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/06/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1639 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, who 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 5.1.2008 for Rs.5 lakhs, 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 Chief Judicial Magistrate Court-Kasaragod, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.524/08. During the trial of the case, PW1 was examined from the side of the complainant and Crl. R.P.No.1639 of 2010 2 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 6 months and to pay a fine of Rs.5,05,000/- out of this, Rs.5,00,000/- is ordered to give to the complainant as compensation, u/s.357(1)(b) of Cr.P.C. The default sentence is fixed as 2 months imprisonment. 3. In appeal, at the instance of the revision petitioner/ accused in Crl.A.77/09, by judgment dated 11.3.2010 of the Court of Sessions, Kasaragod, confirmed the conviction of the Crl. R.P.No.1639 of 2010 3 revision petitioner u/s.138 of Negotiable Instruments Act. Whereas the sentence of imprisonment reduced to 10 days and while maintaining the fine amount, the default sentence is enhanced to 6 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 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 Crl. R.P.No.1639 of 2010 4 revision petitioner is involved in two more similar cases and hence a lenient view may be taken in the matter of sentence and some breathing time may be granted to deposit the fine amount. I am of the view that the said submission can be considered 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 5.1.2008, that too for an amount of Rs.5 lakhs. Thus as per the records, as on today and the findings of the courts below, which approved by this court, a sum of Rs.5 lakhs is in the hands of the revision petitioner for the last more than 2 years. Considering the above facts and legal position, I am of the view that the sentence of imprisonment can be set aside but the fine amount ordered by the courts below can be enhanced Crl. R.P.No.1639 of 2010 5 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 ordered against the revision petitioner is set aside, whereas he is sentenced to pay a fine of Rs.5,25,000/- and in default he is directed to undergo simple imprisonment for a period of 10 months. On realisation of the fine amount, a sum of Rs.5,20,000/- shall be paid to the complainant u/s.357(1)(b) of Cr.P.C. 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 revision petitioner and to execute the sentence awarded against the revision petitioner. Crl. R.P.No.1639 of 2010 6 Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/