IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 27TH SEPEMBER 2010 / 5TH ASWINA 1932 Crl.Rev.Pet.No. 766 of 1997() ------------------------------------------ CRA.344/1994 of II ADDL. SESSIONS COURT, TRIVANDRUM CC.141/1993 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II,NEYYATTINKARA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ----------------------------------------------------------------- RAJAPPAN, S/O . KUMARASWAMI, AMBALATHUVILA VEEDU, ENCHIVILA, PARASSALA P.O. BY ADV. SRI.V.N.ACHUTHA KURUP SRI.B.S.SWATHY KUMAR RESPONDENT(S): RESPONDENT/ COMPLAINANT & STATE ----------------------------------------------------------------------------------- 1. JAYAPALAN, S/O. NALLATHAMPI NADAR, KADAYARA PUTHEN VEEDU, CHENKERATHU VILA, NADOORKOLLA DESOM, KOLLAYIL VILLAGE. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR , HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.P.N.SUMANGALA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.MP. NO.3087/1997 IN CRRP. NO.766/1997 DISMISSED 27/09/2010 SD/- V.K.MOHANAN, JUDGE TRUE COPY P.S. TO JUDGE tss V.K.MOHANAN, J. ------------------------------------------ Crl.R.P. No. 766 of 1997 ---------------------------------------- Dated the 27th Day of September, 2010 ORDER The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the revision petitioner as he is aggrieved by the conviction and sentence imposed against him as per the impugned judgment. 2. The case of the complainant is that towards the discharge of the liability due to the complainant, the accused issued Ext.P1 cheque dated 11.1.1993 for an amount of Rs.12,000/- which when presented for encashment, dishonoured as there was no sufficient fund in the account maintained by the accused and the revision petitioner/accused miserably failed to repay the cheque amount in spite of a formal demand notice caused to issue by him. With the said allegation, the complainant approached the Judicial First Class Magistrate-II, Neyyattinkara by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and CRL.R.P 766/97 -:2:- instituted C.C.No.141/1993. During the course of trial, from the side of the complainant, Pws.1 and 2 were examined and Exts.P1 to P6 were marked. From the side of the defence, no evidence, either oral or documentary was produced. After evaluation of the evidence and the materials on record, the trial court has found that Ext.P1 cheque was issued towards the discharge of a legally enforceable debt that due to the complainant and accordingly, the trial court held that the complainant has succeeded in establishing the allegation against the revision petitioner-accused and found that the revision petitioner-accused is guilty. Consequently, the accused is convicted under section 138 of the N.I.Act. On such conviction, the trial court sentenced the revision petitioner-accused to undergo simple imprisonment for a period of six months and to pay fine of Rs.5000/- The default sentence is fixed as simple imprisonment for a period of three months. 3. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 25.7.1997 in Crl.A.No.344/1994, the CRL.R.P 766/97 -:3:- court of II Addl. Sessions Judge, Thiruvananthapuram dismissed the appeal confirming the conviction and sentence imposed by the trial court. It is the above judgments of the trial court as well as the lower appellate court challenged in this Crl.R.P. 4. Reiterating the contention taken by the defence during the trial and appellate stages, the learned counsel submitted that the complainant has not established the transaction, execution and issuance of the cheque and therefore, the courts below are absolutely wrong in convicting the revision petitioner-accused imposing sentence against him. The trial court as well as the lower appellate court has concurrently found in favour of the complainant and against the revision petitioner-accused. Though the revision petitioner is heard elaborately, nothing is brought out to take a different view to interfere with the concurrent findings of the courts below. All the contentions are based upon the facts and evidence on record which were elaborately considered by the courts below. Therefore, I find no reason to interfere with such concurrent finding of the courts below and accordingly, CRL.R.P 766/97 -:4:- the conviction recorded by the courts below is confirmed. 5. As this court is not inclined to interfere with the order of conviction, the counsel submitted that the sentence of imprisonment ordered by the courts below in unreasonable and exorbitant and the same may be set aside. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered favourably, but subject to other relevant inputs of this case. 6. The cheque in question is dated 11.1.93. The trial court as well as the appellate court has found that the amount covered by the cheque in question is due to the complainant and thus for the last 17 years, the said amount is with the revision petitioner. The Apex Court, in its recent decision in Damodar S.Prabhu v. Sayed Babalal H (J.T.2010 (4) SC 457), has held that in a case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. Therefore, according to me, in the light of the above settled legal position and the facts referred above, the sentence of imprisonment ordered by the courts below can be modified and while granting some time, the CRL.R.P 766/97 -:5:- sentence of imprisonment can be reduced and the revision petitioner can be granted two months time to pay the fine, but the amount can be enhanced slightly. In the result, this Crl.R.P is disposed of confirming the conviction recorded by the courts below against the revision petitioner for the offence under section 138 of the N.I.Act. Accordingly, the sentence of imprisonment ordered by the courts below is modified and reduced to one day simple imprisonment, i.e. till the rising of the court. The revision petitioner is further sentenced to pay a fine of R.20,000/- (Rs.Twenty thousand only) which he is directed to deposit within two months from today and in case of any default in depositing the above amount within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for two months. Accordingly the revision petitioner is directed to appear before the trial court on 22nd November, 2010 to receive the sentence and to deposit the fine amount. If there is any default on the part of the revision petitioner in appearing before the trial court as directed above, the trial court is free to take coercive steps against the revision CRL.R.P 766/97 -:6:- petitioner to secure his presence and to execute the sentence and for realisation of the amount. The learned counsel for the revision petitioner submitted that the petitioner has already deposited the original fine amount as per order of this court dated 23.9.97 while suspending the sentence. If that be so and the said amount is retained in the trial court, the revision petitioner need to deposit a sum of Rs.15,000/- (Rs.fifteen thousand only) towards the fine amount now fixed by this court. On realisation of the fine amount, a sum of Rs.15,000/- shall be released to the complainant being compensation under section 357(1(b) of Cr.P.C. and the remaining amount shall be deposited in the State Exchequer. Coercive steps, if any, pending against the revision petitioner shall be deferred till 22.11.2010. This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- CRL.R.P 766/97 -:7:- kvm/-