IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 2ND JULY 2010 / 11TH ASHADHA 1932 Crl.Rev.Pet.No. 1973 of 2010() ------------------------------ CRA.40/2009 of SESSIONS COURT, KASARAGOD CC.1284/2007 of JUDL.MAGISTRATE OF FIRST CLASS-I, HOSDRUG .................... REVN. PETITIONER(S): APPELLANT/2ND ACCUSED ------------------------------------------ A.PADMAKUMAR, AGED 49 YEARS, CHAIRMAN, DR.AMBEDKAR MEMORIAL EDUCATIONAL TRUST, PERIYA, PERIYA VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADVS. SMT.P.K.PRIYA SRI.K.V.SREE VINAYAKAN RESPONDENT(S): RESPONDENT ------------------------- 1. P.PADMANABHAN NAIR, AGED 60 YEARS, RESIDING AT REVATHY, ERAMAL, THAYANNUR VILLAGE, P.O.KALICHANADUKKAM, KASARAGOD DISTRICT. 2. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SRI.M.R.VENUGOPAL, PUBLIC PROSECUTOR. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ami/ V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1973 of 2010 ------------------------------- Dated this the 2nd day of July, 2010. O R D E R The revision petitioner is the accused in a prosecution for the offence punishable u/s.138 of Negotiable Instruments Act and he preferred this revision petition, challenging the order of conviction and sentence imposed against him by the courts below. 2. The case of the complainant is that, the 1st accused is the Educational Trust running various institutions in Periya and the 2nd accused is the Chairman of the said trust and managing all the affairs of the trust. According to the complainant, the 2nd accused offered a post of Peon to the son of the complainant and towards the said offer, the 2nd accused demanded a security deposit of Rs.2 lakhs and the complainant paid the amount in the month of February, 2005. According to the complainant though his son was appointed, he worked only for a period of one year and thereafter no employment was given and no salary Crl. R.P.No.1973 of 2010 2 was paid. Though the complainant approached the 2nd accused on several occasions, he evaded from paying the amount and finally during the month of February, 2007, the 2nd accused issued a cheque dated 31.3.2007 for an amount of Rs.2 lakhs. The said cheque is pertained to the account maintained by the 1st accused and the same is signed by the 2nd accused, being the Chairman of the trust. But according to the complainant, when the said cheque presented for encashment, it was dishonoured for want of sufficient fund in the account maintained by the accused. Consequently, the complainant demanded the accused to repay the amount covered by the dischonoured cheque, by issuing a statutory notice but no amount was paid. With the said allegation, the complainant approached the Judicial First Class Magistrate-I, Hosdurg, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.1284/07. During the trial of the above case, the complainant himself was examined as PW1 and he had also produced Exts.P1 to P5 to substantiate his allegation in Crl. R.P.No.1973 of 2010 3 the complaint. No evidence either oral or documentary produced from the side of the defence. Finally, the trial court convicted the revision petitioner u/s.138 of Negotiable Instruments Act and on such conviction, the 2nd accused is sentenced to undergo simple imprisonment for 1 year and to pay compensation of Rs.2 lakhs to the complainant u/s.357(3) of Cr.P.C. and the default sentence is fixed as 4 months simple imprisonment. Challenging the above conviction and sentence, though the revision petitioner have filed an appeal, by judgment dated 24.5.2010 in Crl.A.No.40/09 of the Court of Sessions, Kasaragod, allowed the appeal only in part and substantive sentence is reduced to 10 days simple imprisonment. The compensation and the default sentence ordered by the trial court are confirmed. It is the above conviction and sentence challenged in this revision petition. 3. The learned counsel for the revision petitioner submitted that, 9 months time may be granted to the 2nd revision petitioner to pay the compensation amount and also submitted Crl. R.P.No.1973 of 2010 4 that the sentence of imprisonment may be set aside. 4. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered positively but subject to other facts and circumstances involved in the case. 5. As per the findings of the courts below and as approved by this court, the cheque in question is dated 31.3.2007 that too for an amount of Rs.2 lakhs, which belong to the complainant and the same is with the revision petitioner for the last 3 years. 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. Thus considering all the relevant inputs and legal position, I am of the view that the sentence of imprisonment can be modified but the amount of compensation ordered by the courts below can be enhanced and to ensure the payment of compensation amount, the default sentence can also be Crl. R.P.No.1973 of 2010 5 enhanced. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner u/s.138 of Negotiable Instruments Act as recorded by the courts below. Accordingly, the sentence of imprisonment is modified and reduced to one day simple imprisonment ie., till the rising of the court and the 2nd revision petitioner/2nd accused is directed to pay a sum of Rs.2,25,000/- to the complainant u/s.357(3) of Cr.P.C. and on failure in paying the compensation the 2nd revision petitioner is directed to undergo simple imprisonment for a period of 6 months. The 2nd revision petitioner is free to pay the compensation, either directly to the complainant or by remitting the same in the trial court, whatsoever subject to the satisfaction of the learned Magistrate. Accordingly, the 2nd revision petitioner is directed to appear before the court below on 4.10.2010 to pay the compensation amount as directed 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 Crl. R.P.No.1973 of 2010 6 making the 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. Coercive steps if any taken against the revision petitioner shall be kept in abeyance till 4.10.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/