IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 22ND JULY 2010 / 31ST ASHADHA 1932 Crl.Rev.Pet.No. 1620 of 2010() ------------------------------ CRA.247/2009 of ADDL. SESSIONS JUDGE/SPL. COURT (NDPS ACT CASES), THODUPUZHA ST.9/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THODUPUZHA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- PRABHAKARAN, S/O.NARAYANAN, THANNICKAL HOUSE, NADUKANI BHAGOM, KULAMAVU KARA, ARAKULAM VILLAGE, THODUPUZHA TALUK. BY ADVS. SRI.C.M.TOMY SRI.MATHEW SKARIA RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. K.R.SURENDRAN, S/O.RAGHAVAN NAIR, KANJIRAMKUNNEL HOUSE, KULAMAVU KARA, ARAKULAM VILLAGE, THODUPUZHA TALUK. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SRI.C.M.NAZAR, PUBLIC PROSECUTOR. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ami/ V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1620 of 2010 ------------------------------- Dated this the 22nd day of July, 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 11.10.2007 for a sum of Rs.80,000/-, 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 same allegation, the complainant approached the Judicial First Class Magistrate Court-II, Thodupuzha, by filing a formal complaint, upon which Crl. R.P.No.1620 of 2010 2 cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.9/09. During the trial of the case, PW1, the complainant himself, was examined from the side of the complainant and Exts.P1 to P6 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 till rising of the court and to pay a compensation of Rs.82,000/- to the complainant u/s.357(3) of Cr.P.C. and the default sentence is fixed as 3 months simple imprisonment. 3. Though an appeal was filed, at the instance of the Crl. R.P.No.1620 of 2010 3 revision petitioner/accused by judgment dated 25.2.2010 in Crl.A.247/09, the Court of Addl. Sessions Judge/Special Judge for NDPS Act cases, Thodupuzha, dismissed the appeal, confirming the conviction and sentence of the revision petitioner u/s.138 of Negotiable Instruments Act. 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. Crl. R.P.No.1620 of 2010 4 6. The counsel for the revision petitioner submitted that, some breathing time may be granted to deposit the compensation 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 11.10.2007, for an amount of Rs.80,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.80,000/- is in the hands of the revision petitioner for the last 3 years. Considering the above facts and legal position, I am of the view that, while maintaining the sentence of imprisonment ordered by the lower appellate court, the compensation amount can be enhanced slightly and the revision petitioner can be granted 3 months time to pay the Crl. R.P.No.1620 of 2010 5 compensation amount. In the result, this revision petition is disposed of confirming the conviction and sentence imposed against the revision petitioner u/s.138 of Negotiable Instruments Act as recorded by the courts below. Accordingly, the revision petitioner is directed to pay compensation of Rs.85,000/-, within 3 months from today, to the complainant and the default sentence fixed by the courts below is confirmed. The revision petitioner is free to pay the compensation to the complainant/1st respondent either directly or by remitting the same in the trial court, which ever subject to the satisfaction of the learned Magistrate. Accordingly, the revision petitioner is directed to appear before the trial court on 22.10.2010 to pay the compensation 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 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 Crl. R.P.No.1620 of 2010 6 revision petitioner and also to realise the compensation amount. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/