IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932 Crl.Rev.Pet.No. 1367 of 2010() ------------------------------ CRA.249/2008 of ADDL.SESSIONS COURT, PATHANAMTHITTA CC.737/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ADOOR .................... REVN. PETITIONER(S): APPELLANTS/ACCUSED ------------------------------------------------------------------ SAJI KUMAR, ASWATHY HOUSE, ELAMANOOR MURI, ADOOR. BY ADV. SRI.ARUN.B.VARGHESE RESPONDENT(S): COMPLAINANT AND STATE --------------------------------------------------------------- 1. THOMAS, NELLIVILAYIL VEEDU, KILLIVAYAL, ADOOR. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.S.M.PRASANTH R2 BY PUBLIC PROSECUTOR MR. M.R. VENUGOPAL THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1367 of 2010 ------------------------------- Dated this the 28th day of July, 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, towards the discharge of a debt due to the complainant, issued a cheque dated 16.6.2005 for a sum of Rs.88,000/-, 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 in spite of a formal demand notice and thus the revision petitioner has committed the offence punishable u/s.138 of Negotiable Instruments Act. With the same allegation, the complainant approached the Judicial First Class Magistrate Court, Adoor, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.737/2005. 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 either oral or documentary 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 Crl. R.P.No.1367 of 2010 2 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 accused/revision petitioner to undergo simple imprisonment for one year and also directed him to pay an amount of Rs.88,000/- as compensation to the complainant u/s.357(3) of Cr.P.C. and the default sentence is fixed as one month simple imprisonment. 3. Though an appeal was filed the revision petitioner/accused by judgment dated 20.02.2010 in Crl.Appeal.No.249 of 2008, the Court of Addl. Sessions Judge, Pathanamthitta, allowed the appeal only in part. Thus, while confirming the conviction of the revision petitioner u/s.138 of the Negotiable Instruments Act, the sentence is modified and reduced and accordingly, the revision petitioner is sentenced to undergo simple imprisonment till rising of the court and also ordered to pay a compensation of Rs.88,000/- to the complainant and default sentence ordered by the trial court is also confirmed. 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 Crl. R.P.No.1367 of 2010 3 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 conviction ordered by the trial court, the learned counsel for the revision petitioner submitted that, some breathing time may be granted to pay the compensation amount and also submitted that the revision petitioner permitted to pay compensation amount directly to the complainant. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered in favourably but subject to slight enhancement with respect to 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 compensatory aspect of the remedy should be given priority over the punitive aspects. In the present case, the cheque in question is dated 16.06.2005, for an amount of Rs.88,000/-. Thus, as per the records and the findings of the courts below, which approved by this court, a sum of Rs.88,000/- is in the hands of the revision Crl. R.P.No.1367 of 2010 4 petitioner for the last 5 years. Considering the above facts and legal position, I am of the view that, while maintaining the sentence of imprisonment ordered by the lower appellate court, the compensation amount fixed by the court below can be enhanced to the tune of Rs.95,000/- which would sufficient to meet the ends of justice and the revision petitioner can be granted 3 months time to pay the compensation amount. In the result, this revision petition is disposed of confirming the conviction and sentence imposed against the revision petitioner u/s.138 of Negotiable Instruments Act as recorded by the courts below. Thus while confirming the sentence of imprisonment as ordered by the lower appellate court, the revision petitioner is directed to pay a sum of Rs.95,000/-to the complainant as compensation u/s.357(3) of Cr.P.C within three months from today and in case of default for paying the compensation within the time limit, 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 28.10.2010 to receive the sentence and to pay the compensation. The revision petitioner is free to pay the compensation either directly to the complainant or by remitting the same in the trial court whichever is subject to the satisfaction of the learned Magistrate of the trial court. In case of any failure on the part of the revision petitioner in appearing before the court below as directed above and in making the Crl. R.P.No.1367 of 2010 5 deposit 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 and also to realise the compensation amount. If any warrant is pending against the revision petitioner the execution of the same shall be deferred till 28.10.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. mns