IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 24TH SEPTEMBER 2010 / 2ND ASWINA 1932 Crl.Rev.Pet.No. 2752 of 2010(D) -------------------------------------------- [CRL.A.NO.100/2009 OF THE ADDL.DISTRICT & SESSIONS COURT (ADHOC)-II, KOTTAYAM, ST.NO.26/2008 OF CHIEF JUDICIAL MAGISTRATE'S COURT, KOTTAYAM] .................... REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------------- P.N.JAYAKUMAR,AGED 42 YEARS B.S.N.L EXCHANGE, PAMBADY, RESIDING AT G5 P&T QUARTERS, MUTTAMBALAM P.O, KOTTAYAM. BY ADV. SRI.P.P.BIJU. RESPONDENTS: ------------------------ 1. KURIAN GEORGE, VALIYAVEETTIL HOUSE VILLOONNI PO,KOTTAYAM. 2. STATE OF KERALA, REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT. C.M. CHARISMA. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/09/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2752 of 2010 ------------------------------- Dated this the 24th day of September, 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.40,000/- and towards the discharge of the said liability, the accused issued a cheque dated 7.11.2007 for a sum of Rs.40,000/-, 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 approached the Chief Judl. Magistrate Court- Kottayam, by filing a formal complaint, upon which cognizance 2 Crl. R.P.No.2752 of 2010 was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.26/08. 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 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 till the rising of the court and also ordered the revision petitioner to pay a fine of Rs.45,000/-, out of which an amount of Rs.40,000/- shall be paid to the complainant as compensation u/s.357(1)(b) of Cr.P.C. and on failure to pay the fine, the revision petitioner is directed to 3 Crl. R.P.No.2752 of 2010 undergo simple imprisonment for 1 month. 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 7.4.2010 in Crl.A.100/09, the Court of Addl. District & Sessions Judge (Ad hoc)-II, Kottayam, dismissed the appeal, confirming the conviction and sentence imposed against the accused by the trial court. 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 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 4 Crl. R.P.No.2752 of 2010 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 recorded by the courts below, the learned counsel for the revision petitioner submitted that, some breathing time may be granted to pay the fine amount. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered but subject to other facts and circumstances involved in the case. 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 7.11.2007, that too for an amount of Rs.40,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.40,000/- which belonged to the complainant is in the hands of the revision petitioner for the last 3 5 Crl. R.P.No.2752 of 2010 years. Considering the above facts and settled legal position, I am of the view that the sentence of imprisonment ordered by the courts below against the revision petitioner can be maintained and some time can be granted to the revision petitioner to pay the fine amount. 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 confirming the conviction and sentence of imprisonment as ordered by the courts below and also the direction to pay the fine amount, the revision petitioner is granted 45 days time to deposit the fine amount and the default sentence fixed by the lower appellate court will be attracted only when the revision petitioner makes any failure in paying the fine amount within 45 days from today. Accordingly, the revision petitioner is directed to appear in the trial court and deposit the fine amount on 8.11.2010. In case, any failure on the part of the revision petitioner in paying the fine amount and appearing in the trial 6 Crl. R.P.No.2752 of 2010 court, 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. The execution of warrant if any, pending against the revision petitioner shall be deferred till 8.11.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/