IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 20TH MAY, 2010 / 30TH VAISAKHA, 1932 Crl.Rev.Pet.No. 1561 of 2010 -------------------------------- (CRA.345/2008 of SESSIONS COURT, KASARAGOD CC.307/2008 of COURT OF JUDICIAL FIRST CLASS MAGISTRATE-ii (ADDITIONAL MUNSIFF), KASARAGOD) .................... REVN. PETITIONER(S): (APPELLANT/ACCUSED) ---------------------------------------------------- CHANDRASHEKHARA HOLLA, ART MASTER, S.V.S. JUNIOR COLLEGE, KATTAPADY, UDUPI.P.O, MANGALORE VIA, KARNATAKA STATE. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR SMT.VANDANA MENON SMT.ANJU P.NAIR RESPONDENT(S): RESPONDENT/COMPLAINANT & STATE) --------------------------------------------------------------- 1. UNNIKRISHNA, S/O.LATE NARAYANAN NAIR, ADHILAYAM HOUSE, NEAR ANGANVADI, KALIYANGAD, RAMDAS NAGAR POST, KASARAGOD TALUK AND DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE DIRECTOR OF PUBLIC PROSECUTIONS, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI.M.R.VENUGOPAL. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.R.P.No. 1561 of 2010 --------------------------------------------- Dated this the 20th day of May, 2010 O R D E R This Criminal Revision Petition is preferred by the accused in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') as he is aggrieved by the conviction and sentence imposed against him, both by the trial court as well as the lower appellate court. 2. The case of the complainant is that the revision petitioner/accused borrowed a sum of Rs.75,000/- and towards the discharge of the said liability, the revision petitioner/accused issued a cheque dated 30.9.2007 for the said amount. According to the first respondent/complainant, when the said cheque was presented for encashment, it was dishonoured for want of sufficient fund and accordingly, he approached the Judicial First Class Magistrate Court-II (Additional Munsiff), Kasaragod, by filing a complaint upon which cognisance was taken and C.C.No.307 of 2008 was Crl.R.P.NO.1561 of 2010 :-2-: instituted. During the trial of the case, the complainant himself adduced oral evidence as PW1 and Exts.P1 to P8 were produced. No evidence either oral or documentary was produced from the side of the defence. Based upon the materials and evidence, the trial court found that the revision petitioner/accused is guilty and accordingly, he is sentenced to undergo simple imprisonment for three months and further directed to pay a sum of Rs.75,000/- as compensation to the complainant under Section 357(3) of the Cr.P.C. and the default sentence is fixed as one month imprisonment. 3. Challenging the above conviction and sentence, though the revision petitioner had approached the Sessions Court, Kasaragod by filing Crl.A.No.345 of 2008, by judgment dated 11.2.2010, the learned Sessions Judge allowed the appeal only in part and while confirming the conviction, the sentence was modified and reduced to one Crl.R.P.NO.1561 of 2010 :-3-: day till rising of court and while maintaining the amount of compensation ordered by the trial court, default sentence is enhanced to two months simple imprisonment and accordingly, the revision petitioner was directed to appear before the trial court on 17.3.2010. 4. It is the above finding and order of conviction and sentence of the court below challenged in this revision petition. Going by the impugned judgments of the trial court as well as the lower appellate court, it can be seen that both the courts have concurrently found that the complainant has established his case against the accused and the courts have accepted the evidence and materials produced by the complainant. From the discussions and the materials relied on by the courts below, it can be seen that the accused has not disputed the signature in Ext.P1 cheque and the execution of the cheque. According to the revision petitioner/accused, the cheque in question is the one which Crl.R.P.NO.1561 of 2010 :-4-: he entrusted with one Ramakrishna as a security when the accused obtained loan from the said Ramakrishna. So the signature as well as the execution of cheque are admitted by the accused. Therefore, the question to be considered is how far the accused succeeded in establishing his version especially, as to how the cheque reached in the hands of the complainant. Regarding this aspect, absolutely there is no evidence adduced by the accused except his own explanation. It was under the above factual circumstances, the trial court as well as the lower appellate court repelled the plea raised by the defence and found against him and accordingly, came into a conclusion that the complainant has succeeded in establishing his case against the accused. Therefore, I find no merit in the revision petition. 5. Learned counsel for the revision petitioner submitted that if this Court is not inclined to interfere with the order of conviction, some breathing time may be Crl.R.P.NO.1561 of 2010 :-5-: granted to the revision petitioner to pay the amount and to receive the sentence. This Court cannot ignore the fact that the cheque is dated 30.9.2007 for a substantial amount of Rs.75,000/-. Though the trial court imposed the sentence of three months simple imprisonment while ordering the payment of Rs.75,000/- as compensation, the lower appellate court reduced the substantial sentence to one day and directed the revision petitioner to pay the amount. So far, no amount is paid to the complainant and therefore, while granting some time to the revision petitioner to make the payment, the amount of compensation can be enhanced to Rs.80,000/- (Rupees Eighty Thousand only) which will be sufficient to meet the ends of justice, especially in the light of the decision reported in Damodar.S.Prabhu v. Sayed Babalal.H. [JT 2010(4) SC 457] wherein it was held that in the case of dishonour of cheques, the compensatory aspect of the remedy should be given priority over the punitive Crl.R.P.NO.1561 of 2010 :-6-: aspects. 6. In the result, this Criminal Revision Petition is disposed of confirming the conviction of the revision petitioner under Section 138 of the N.I.Act as recorded by the trial court as well as the lower appellate court. Regarding the sentence, the sentence modified and refixed by the lower appellate court is maintained, but the compensation amount is enhanced to Rs.80,000/- (Rupees Eighty Thousand only) which shall be paid by the revision petitioner to the complainant, and in case of default in making the payment, the revision petitioner is directed to undergo simple imprisonment for three months. Accordingly, the revision petitioner is directed to appear before the trial court on 20.8.2010 to receive the sentence and to make the payment of compensation as revised and refixed by this court. In case of any failure on the part of the revision petitioner in appearing before the court below Crl.R.P.NO.1561 of 2010 :-7-: as directed above, the trial court is free to take coercive steps to procure the presence of the revision petitioner and to execute the sentence and to realise the compensation amount. The coercive steps, if any, pending against the revision petitioner shall be deferred till 20.8.2010. V.K.Mohanan, Judge. MBS/ Crl.R.P.NO.1561 of 2010 :-8-: V.K.MOHANAN, J. -------------------------------------------- Crl.A.NO. OF 200 ------------------------------------ J U D G M E N T DATED: -2-2010 Crl.R.P.NO.1561 of 2010 :-9-: