IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 5TH OCTOBER 2010 / 13TH ASWINA 1932 Crl.Rev.Pet.No. 2841 of 2010() ------------------------------------ (CRL.A.NO.829/2007 OF ADDL. SESSIONS COURT-II, THIRUVANANTHAPURAM C.C.NO.307/2005 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-VI) ........ REVISION PETITIONER/APPELLANT ------------------------------------------ AUSTIN JAYARAJ, AGED 43 YEARS, S/O.JHANARAJ, K.G.BHAVAN, SOORAVAKANI, KOVILLOOR DESOM, AMBOORI VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.IEANS.C.CHAMAKKALA RESPONDENT(S): -------------------- 1. SHAHUL HAMEED, S/O.ALIKANNU, SREEJA BHAVAN, KONDOTTIKKARA, THEKKUPARA.P.O., AMBOORI. 2. KERALA STATE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY PUBLIC PROSECUTOR SRI. V.TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 05/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SVS/ V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2841 of 2010 ------------------------------- Dated this the 5th day of October, 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.50,000/- from the complainant and towards the discharge of the debt due to the complainant, he issued Ext.P5 cheque dated 25.3.2003 for a sum of Rs.50,000/-, 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 initially approached the Judl. First Class Magistrate Court-III, Neyyattinkara, by filing a formal 2 Crl. R.P.No.2841 of 2010 complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.411/03 and the case is made over to the Court of Judicial First Class Magistrate- VI, Neyyattinkara and renumbered the matter as C.C.No.307/05. During the trial of the case, the complainant himself was mounted to the box and gave evidence as PW1 and Exts.P1 to P5 were marked, from the side of the complainant and Ext.C1 is marked from the side of court. 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 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 3 months and to 3 Crl. R.P.No.2841 of 2010 pay a compensation of Rs.55,000/- to the complainant u/s.357(3) of Cr.P.C. and the default sentence was fixed as 2 months simple imprisonment. 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 14.10.2009 in Crl.A.829/07, the Court of IInd Addl. Sessions Judge - Thiruvananthapuram, allowed the appeal only in part and accordingly while confirming the conviction, the substantive sentence imposed against the revision petitioner is modified and reduced to simple imprisonment till the rising of the court and also directed the revision petitioner to pay a compensation of Rs.58,000/- to the complainant and the default sentence is fixed as 3 months simple imprisonment. Accordingly, the revision petitioner was directed to appear before the trial court on 30.11.2009. 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 4 Crl. R.P.No.2841 of 2010 below. 5. Reiterating the stand taken by the accused/revision 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 pay 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 positively but subject to slight enhancement with respect to the compensation amount. 7. The apex court in a recent decision reported in Damodar 5 Crl. R.P.No.2841 of 2010 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 25.3.2003, for an amount of Rs.50,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.50,000/-, which belonged to the complainant is with the revision petitioner for the last 7 years. So, while granting some time to pay the compensation amount, the same can be enhanced slightly. 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, while maintaining the sentence of imprisonment as modified and fixed by the appellate court, the revision petitioner is directed to pay a sum of Rs.67,000/- to the complainant as compensation u/s.357(3) of Cr.P.C., within 3 months from today and in default, the revision petitioner is directed to undergo 6 Crl. R.P.No.2841 of 2010 simple imprisonment for 3 months. Accordingly, the revision petitioner is directed to appear before the trial court on 5.1.2011 to receive the sentence and to pay the compensation amount. In case any failure on the part of the revision petitioner in appearing before the court below as directed above and in paying the 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, pending against the revision petitioner shall be deferred till 5.1.2011. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/