IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 18TH NOVEMBER 2011 / 27TH KARTHIKA 1933 Crl.Rev.Pet.No. 2546 of 2011() ------------------------------------------- CRA.260/2010 OF III ADDITIONAL SESSIONS COURT, KOZHIKODE. ST.1819/2008 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT-I, THAMARASSERY .................... REVN. PETITIONER/APPELLANT/ACCUSED --------------------------------------------------------------- RAJEEVAN T., S/O.BALAN NAMBIAR, CHAMBRA KUNIYIL HOUSE, P.O-CHELAKKAD, KALACHI (VIA), KOZHIKODE DISTRICT, PIN-673 504. BY ADV. SRI.K.RAKESH ROSHAN, SMT.THUSHARA.V. RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE ---------------------------------------------------------------------------------------- 1. RAJESH KUMAR, S/O.VIJAVISIGHN, PROPRIETOR SREE DHARVAL FINANCEE, 12, ERULAPPAN STREET, IST FLOOR, SAW CARPED, CHENNAI, PIN-600 079, AGENCY OFFICE AT AMRITA AUTO FINANCE CHUNKAM, THAMARASSERY, KOZHIKODE DISTRICT, PIN-673 002. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-31. R1 BY ADV. SRI.A.T.ANILKUMAR, SMT.V.SHYLAJA. R2 BY PUBLIC PROSECUTOR SMT.SEENA R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P No.2546 OF 2011 ----------------------------------------- Dated this the 18th day of November 2011 ORDER Revision is by the accused in a cheque case. Conviction against him for the offence under Section 138 of the Negotiable Instruments Act (for short, 'NI Act') concurrently rendered by the two courts below is assailed in the revision. Sentence imposed against the accused, as affirmed by the learned sessions judge in appeal, is simple imprisonment for three months with direction to pay `.1,80,000/- to the complainant as compensation with default term of simple imprisonment for one month more. 2. The learned counsel for the accused reiterated the challenges advanced before the courts below to assail the conviction concurrently rendered against him in the case. The accused had disputed the transaction with the complainant and the liability arising under the dishonoured cheque to him, is the submission of the counsel contending that in spite of such challenges raised no evidence was let in to prove due execution and also that the cheque had been issued towards the discharge of a legally enforceable debt or liability. A power of attorney holder of the complainant alone was examined as PW1 apart from producing some documents to sustain Crl.R.P No.2546 OF 2011 2 the prosecution case, and both the courts below, without looking into the challenges raised by the accused, have improperly founded a conviction against him, is the submission of the counsel. 3. Going through the judgments rendered by the magistrate and also the sessions judge, I am not persuaded to accept the challenges canvassed by the counsel. A statutory notice was issued on dishonour of the instrument to the accused, its drawer, but, after acknowledgment, it remained unresponded. The learned counsel contended before me that the accused had disputed the case of the complainant that he was the drawer of the dishonoured cheque. I find no such contention or challenge was raised before the two courts below. In fact, the memorandum of revision also does not contain a challenge in the manner canvassed by the counsel. So much so, the new defence canvassed in the revision by the accused that he was not the drawer of the dishonoured cheque on which the prosecution was launched deserve to be taken note of only for its rejection. The finding of guilt entered by the magistrate after appreciating the materials produced in the case was affirmed by the learned Sessions Judge after reappraisal of the evidence. I do not find any infirmity whatsoever in the conviction founded against the accused, which is seen supported by unimpeachable legal evidence. Crl.R.P No.2546 OF 2011 3 4. At this stage, the learned counsel for the petitioner/accused urged for modification of the sentence imposed against him contending that the substantive term of imprisonment imposed is rigorous and harsh. The liability arising under the dishonoured cheque but for its inclusion as an offence, on satisfaction of the necessary ingredients thereof as under Section 138 of the Negotiable Instruments Act, is primarily a civil liability. That being so, in the absence of exceptional circumstance justifying the incarceration of the drawer of a cheque, on its dishonour, when prosecuted for the offence under Section 138 of the Negotiable Instruments Act and convicted thereunder, his incarceration for a term in prison is uncalled for. No such special circumstance is seen made out in the case to impose a harsh punishment directing the accused to undergo simple imprisonment for a period of three months as awarded by both the courts below. So much so, the sentence imposed against the accused has to be modified and limited to imprisonment till the rising of the court retaining the compensation with the default term of imprisonment. 5. Affirming the conviction, sentence imposed against the accused shall stand modified and reduced to imprisonment till the rising of the court with direction to pay the compensation fixed by the court below with the default term of imprisonment thereof. Crl.R.P No.2546 OF 2011 4 Petitioner shall appear before the magistrate on 31-01-2012 to serve out the imprisonment till the rising of the court and to report payment of compensation. The magistrate shall keep in abeyance the execution of sentence imposed against the accused till the date fixed as above for his appearance, to enable him to pay the compensation within such period. In default of his appearance and nonpayment of the compensation, the learned magistrate shall execute the sentence taking appropriate steps in accordance with law. Revision disposed of. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge