IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 28TH MAY 2010 / 7TH JYAISHTA 1932 Crl.Rev.Pet.No. 1574 of 2010() ------------------------------ (CRA. 366/2008 of ADDL.SESSIONS COURT, FAST TRACK, (ADHOC) III, MANJERI ST.1756/2006 of THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE-II, PARAPPANANGADI) .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- C.K.MOHANADASAN,S/O. VELUKUTTY, VILLAGE EXTENSION OFFICER, CHEMRAKUZHI KANDARI HOUSE, THENHIPALAM P.O., MALAPPURAM DISTRICT. BY ADV. SRI.P.VENUGOPAL (1086/92) RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. P. PRAKASAN S/O. BHASKARAN, PANAYAKANDI HOUSE, ARIYALLUR AMSOM, DESOM TIRURANGADI TALUK, MALAPPURAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY P.P. SMT. PUSHPALATHA M.K. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl. R.P. No. 1574 of 2010 ---------------------------------------- Dated 28th Day of May, 2010 ORDER The accused in a persecution for the offence under Section 138 of the Negotiable Instruments Act is the revision petitioner who challenges his conviction and sentence imposed by the courts below, in this proceedings. 2. The allegation against the revision petitioner/accused is that he had requested for a loan from the complainant one month back to the date 8.1.2006, on which date, the complainant gave a sum of Rs.1,50,000/- to the accused on an undertaking that he will repay the amount within one month from the date of receipt of the amount. But the amount was not repaid as assured and when demanded for the repayment, the accused issued a cheque dated 27.3.2003, for the above amount, which when presented for encashment , dishonourd as there was no sufficient fund in the account maintained by the revision petitioner-accused and therefore, Section 138 of the N.I. Act is attracted. With the above allegation, the complainant preferred a complaint upon which cognizance was taken and instituted S.T.No.1756/2006 by the Judaical First Class Magistrate-II, Parappanangadi. During Crl.r.p.1574/10 -:2:- the course of trial of the above case, the complainant himself was examined as PW1 and he adduced documentary evidence such as Exts.P1 to P6. Admittedly, no evidence was adduced from the side of the defence. On the basis of the above materials, the trial court found that the complainant has established his case and consequently, he is entitled to get the presumption available under section 139 of the N.I.Act and the accused has not rebutted such presumption. Thus, the trial court convicted the revision petitioner for the offence for which he was charged and accordingly, sentenced him to undergo simple imprisonment for 6 months and to pay a compensation of Rs.1,50,000/- under section 357(3) Cr.P.C. The default sentence is fixed as simple imprisonment for one month. Though an appeal was filed by the revision petitioner challenging the verdict of the trial court, by judgment dated 24.11.2009, in Crl.A.No.366/2008, the court of Addl. Sessions Judge (Fast Track Court No.III (Adhoc), Manjeri, allowed the appeal only in part. Thus while confirming the conviction imposed by the trial court, the lower appellate court modified the sentence of imprisonment and reduced the same to imprisonment till the rising of the court and the compensation and default sentence fixed by the trial court were maintained by the lower appellate court. Crl.r.p.1574/10 -:3:- Accordingly the revision petitioner was directed to appear before the trial court within 45 days from the date of the judgment of the lower appellate court. It is the above judgments of the courts below and the conviction and the sentence challenged in this revision. 3. I have heard the counsel appearing for the revision petitioner and also perused the judgments of the courts below. On consideration of the arguments and the judgments of the courts below, it can be seen that the revision petitioner has not disputed the transaction, execution and issuance of the cheque, though not as claimed by the complainant. According to the revision petitioner/accused, he had no transaction with the complainant. But it is his case that he had borrowed a sum of Rs.20,000/- from the brother of the complainant and at the time of that transaction, a blank cheque was given to him and it is the further case of the revision petitioner that the said cheque is now misused by the complainant and preferred the present complaint. The trial court as well as the lower appellate court have elaborately considered the contention and plea raised by the accused and found that the revision petitioner has not discharged his burden in rebutting the presumption which is available in favour of the complainant Crl.r.p.1574/10 -:4:- because the evidence and materials on record shows that the complainant has established his case. As the revision petitioner has not disputed the execution and issuance of the cheque, though not as claimed by the complainant, it is for the revision petitioner to establish that the same was executed and issued as pleaded by him. But in the present case, no effective step was take to materialise such version. No evidence is adduced in this regard and nothing brought on record to disbelieve the version of the complainant and to probablise the version of the revision petitioner/accused. In the light of the above facts and circumstances, I find no reason to interfere with the concurrent finding arrived on by the courts below. 4. Counsel for the revision petitioner submitted that a breathing time may be granted to the revision petitioner to receive the sentence and to make the payment. I am of the view that such submission can be considered in favour of the revision petitioner. At the same time it is relevant to note that the proved facts would show that an amount of Rs.1,50,000/- was handed over to the accused as early as on 8.1.2006 and thereafter 4 years are over and during this period, the amount is with the revision petitioner. The learned counsel for the revision petitioner Crl.r.p.1574/10 -:5:- submitted that the revision petitioner is a government employee. The Apex Court in the decision in Damodar S.Prabhu v. Sayed Babalal H (JT 2010(4) SC 457), has held that in case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. Considering all these facts, I am of the view that while maintaining the sentence of imprisonment awarded by the lower appellate court, the amount of compensation fixed under section 357(3) Cr.P.C can be converted and enhanced as fine. In the result, this Crl.R.P is disposed of confirming the conviction of the revision petitioner under section 138 of the NI Act as recorded by the courts below and the sentence of imprisonment awarded by the lower appellate court. In addition to that the petitioner is further sentenced to pay a fine of Rs.1,70,000/- and in case of default in paying the said fine amount, he is directed to undergo simple imprisonment for a period of 6 months. In case the fine amount is realised, the entire amount shall be paid to the complainant under Section 357(1)(b) of the N.I.Act. Accordingly, the revision petitioner is directed to appear before the trial court on 31st August, 2010 to receive the sentence and to Crl.r.p.1574/10 -:6:- make the payment of the fine amount as directed above. 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 petitioner to secure the presence and to execute the sentence and for realisation of the fine amount. Execution of warrant, if any pending against the revision petitioner, shall be deferred till 31.8.2010. V.K.MOHANAN, JUDGE kvm/- Crl.r.p.1574/10 -:7:- V.K.MOHANAN, J. O.P.No. JUDGMENT Dated:..