IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 13TH AUGUST 2010 / 22ND SRAVANA 1932 Crl.Rev.Pet.No. 2377 of 2010() ------------------------------ CRA.242/2007 of SESSIONS COURT, TRIVANDRUM CC.441/2005 of JUDICIAL FIRST CLASS MAGISTRATE COURT V, NEYYATTINKARA. .................... PETITIONER/APPELLANT/ACCUSED: --------------------------------------------------------- C.P.RAJENDRAN, TCNO.16/1186 CHOTHI, JAGATHY KOCHAR ROAD, THIRUVANANTHAPURAM. BY ADV. SRI.M.R.SARIN PANICKER RESPONDENT(S): RESPONDENT/COMPLAINANT/STATE: ------------------------------------------------------------------------------------ 1. AJITH KUMAR, CHRIST BHAVAN VENGANOOR DESOM, VIZHINJAM VILLAGE, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.G.SUDHEER R2 BY PUBLIC PROSECUTOR SRI. VENUGOPAL.M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2377 of 2010 ------------------------------- Dated this the 13th day of August, 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 borrowed a sum of Rs.1,00,000/- from the complainant and towards the discharge of the debt due to the complainant, he issued a cheque dated 20.8.2004 for a sum of Rs.1,00,000/-, 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 said allegation, the complainant approached the Judl. First Class Magistrate Court-V, Neyyattinkara, by filing a formal Crl. R.P.No.2377 of 2010 2 complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.451/05. 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 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 compensation of Rs.1,05,000/- u/s.357(3) of Cr.P.C. and the default sentence was fixed as 3 months simple imprisonment. 3. Though an appeal was filed, at the instance of the Crl. R.P.No.2377 of 2010 3 revision petitioner/accused, by judgment dated 26.8.2008 in Crl.A.242/07, the Court of Sessions Judge, Thiruvananthapuram, allowed the appeal only in part, confirming the conviction of the revision petitioner u/s.138 of Negotiable Instruments Act and modifying and reducing the sentence to 1 day simple imprisonment ie., till rising of the court and the sentence to pay a fine of Rs.1,05,000/- and the default sentence was fixed as 4 months simple imprisonment. It is also ordered that, on realisation of the fine amount, it is directed to pay the same to the complainant as compensation u/s.357(1)(b) of Cr.P.C. and the revision petitioner was directed to appear before the trial court on 20.10.2008 to receive the sentence. 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 Crl. R.P.No.2377 of 2010 4 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. As this court is not inclined to interfere with the order of conviction recorded by the courts below, the counsel for the revision petitioner submitted that, some breathing time may be granted to deposit 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 slight enhancement in the compensation amount. 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 Crl. R.P.No.2377 of 2010 5 compensatory aspect of the remedy should be given priority over the punitive aspects. In the present case, the cheque in question is dated 20.8.2004, for an amount of Rs.1,00,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.1,00,000/-, which belonged to the complainant is with the revision petitioner for the last 6 years. 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 modified and fixed by the lower appellate court is confirmed and the revision petitioner is directed to pay a fine of Rs.1,25,000/-, within 3 months from today and in case of default in paying the fine amount, the revision petitioner is directed to undergo simple imprisonment for 4 months. On realisation of the fine amount, a sum of Rs.1,20,000/- shall be paid to the complainant as compensation u/s.357(1)(b) of Cr.P.C. Accordingly, the revision Crl. R.P.No.2377 of 2010 6 petitioner is directed to appear before the trial court on 12.11.2010, to receive the sentence of imprisonment and to pay the fine amount as fixed 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 payment 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. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/