IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 3RD SEPTEMBER 2010 / 12TH BHADRA 1932 Crl.Rev.Pet.No. 2557 of 2010() ------------------------------ CRA.366/2008 of ADDL.SESSIONS COURT (ADHOC I), KOTTAYAM ST.1386/2006 of JUDL. FIRST CLASS MAGISTRATE COURT I, KOTTAYAM .................... REVISION PETITIONR/APPELLANT/ACCUSED: --------------------------------------------------------------------- K.REJITHKUMAR, S/O. P.A.KRISHNAN KUTTY, PARUTHOOR HOUSE, PUTHUPPALLY P.O., -DO- KARA, -DO- VILLAGE, KOTTAYAM. BY ADV. SRI.JOSEPH GEORGE RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE: ------------------------------------------------------------------------------------------- 1. THE PUTHUPPALLY VILLAGE SERVICE CO-OPERAIVE BANK LTD.NO.1504, PUTHUPALLY REP.BY ITS SECRETARY THOMAS PHILIP. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. R1 BY ADV. SRI.A.K.HARIDAS R2 BY PUBLIC PROSECUTOR SRI. V. TEKCHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2557 of 2010 ------------------------------- Dated this the 3rd day of September, 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 father of the accused availed a loan from the complainant/bank and towards the discharge of the said liability, the accused issued a cheque dated 9.1.2006 for a sum of Rs.1,39,712/-, 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 said allegation, the complainant approached the Judl. First Class Magistrate Court-I, Kottayam, by filing a formal complaint, upon which cognizance Crl. R.P.No.2557 of 2010 2 was taken u/s.138 of Negotiable Instruments Act and instituted Calendar S.T.No.1386/06. During the trial of the case, PW1, the complainant himself, and PW2 were examined from the side of the complainant and Exts.P1 to P20 were marked. From the side of the defence, DW1 was examined and Exts.D1 to D3 were also produced and marked. 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 there was no order either for fine or compensation. 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 11.3.2009 in Crl. R.P.No.2557 of 2010 3 Crl.A.366/08, the Court of Sessions Judge, Kottayam Division, allowed the appeal only in part, confirming the conviction but modifying the sentence of imprisonment to one day simple imprisonment ie., till the rising of the court and also directed to pay compensation of Rs.1,20,000/- to the complainant/2nd respondent u/s.357(3) of Cr.P.C., which amount was fixed after considering the amount already deposited by the original loanee and in default to undergo simple imprisonment for 2 months. 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 Crl. R.P.No.2557 of 2010 4 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. As this court is not inclined to interfere with the conviction recorded by the courts below, the learned counsel for the revision petitioner submitted that, some breathing time may be granted to pay the compensation amount. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered but subject to other facts 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 9.1.2006, that too for an amount of Rs.1,39,712/-. Thus as per the records and the findings of the courts below, which approved Crl. R.P.No.2557 of 2010 5 by this court, a sum of Rs.1,39,712/- which belonged to the complainant is with the revision petitioner for the last 4 years. Considering the above facts and settled legal position, I am of the view that some time can be granted to the revision petitioner to pay the compensation amount but subject to slight enhancement in the compensation amount. In the result, this revision petition is disposed of confirming the conviction against the revision petitioner u/s.138 of Negotiable Instruments Act as recorded by the courts below. Accordingly, the sentence of imprisonment as revised and refixed by the appellate court is confirmed. Whereas, the compensation amount ordered by the appellate court u/s.357(3) of Cr.P.C. is enhanced to the tune of Rs.1,30,000/-, which shall be paid by the revision petitioner within 3 months from today and in case of default in paying the compensation amount within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for 3 months. Accordingly, the revision petitioner is directed to appear before the trial court on 3.12.2010, to receive Crl. R.P.No.2557 of 2010 6 the sentence of imprisonment and to pay the compensation amount as directed by this court. The revision petitioner is free to pay the amount directly to the complainant or by remitting the same before the court below, which ever is subject to the satisfaction of the learned Magistrate. In case any failure on the part of the revision petitioner in appearing before the court below as directed above and in making the payment 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 revision petitioner. The execution of warrant if any, pending against the revision petitioner shall be deferred till 3.12.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/