IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 30TH SEPTEMBER 2010 / 8TH ASWINA 1932 Crl.Rev.Pet.No. 2814 of 2010() ------------------------------------ (CRA.608/2008 of ADDL. SESSIONS COURT (ADHOC) III, (FAST TRACK COURT NO.III)PALAKKAD ST.2965/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PALAKKAD) .................... REVISION PETITIONER(S)/APPELLANT/ACCUSED ---------------------------------------------------------- KANNAN, S/O.CHANDRAN, NADUVIL HOUSE, PANAYUR P.O., CHITTUR, PALAKKAD. BY ADVS. SRI.K.ANAND SMT.T.H.RAJITHA RESPONDENT(S)/ RESPONDENTS/STATE & COMPLAINANT -------------------------------------------------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. JAFFER ALI, S/O.ABDUL AZEEZ, FRIENDS AUTO CONSULTANT, MALAMPUZHA ROAD, OLAVAKKODE, PALAKKAD. R1 BY PUBLIC PROSECUTOR SMT. P.N. SUMANGALA R2 BY ADV. SRI.K.P.BALAGOPAL THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SVS/ V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2814 of 2010 ------------------------------- Dated this the 30th 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.50,000/- and towards the discharge of the said liability, the accused issued a cheque dated 19.9.2006 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 approached the Court of Judl. First Class Magistrate-I, Palakkad, by filing a formal complaint, upon which 2 Crl. R.P.No.2814 of 2010 cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.2965/06. During the trial of the case, PW1, the complainant herself was examined from the side of the complainant and Exts.P1 to P5 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 for 6 months and also directed the revision petitioner to pay a sum of Rs.50,000/- as compensation to the complainant u/s.357(3) of Cr.P.C., failing which the revision petitioner is directed to undergo simple imprisonment for 3 months. 3 Crl. R.P.No.2814 of 2010 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 11.3.2010 in Crl.A.608/08, the Court of Sessions Judge, Palakkad, allowed the appeal only in part and thus while confirming the conviction of the revision petitioner, the sentence of imprisonment ordered by the court below is set aside and the revision petitioner is sentenced to pay a fine of Rs.60,000/- and in default to undergo simple imprisonment for 2 months. It is also ordered that on realisation of the fine amount, the same shall be given to the complainant as compensation u/s.357(1)(b) of Cr.P.C. 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 4 Crl. R.P.No.2814 of 2010 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 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 19.9.2006, that too for an amount of Rs.50,000/-. Thus as per 5 Crl. R.P.No.2814 of 2010 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 in the hands of the revision petitioner for the last 4 years. Considering the above facts and settled legal position, I am of the view that, some time can be granted to pay the fine amount but the amount 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 confirming the sentence to pay fine, the fine amount is enhanced to the tune of Rs.65,000/-, which shall be paid within 3 months from today and in case of default in paying the fine amount within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for 2 months. Accordingly, the revision petitioner is directed to appear before the trial court on 30.12.2010, to receive the sentence of imprisonment and to pay the fine amount as directed by this court. On realisation of the fine amount, a sum of Rs.62,500/- 6 Crl. R.P.No.2814 of 2010 shall be paid to the complainant as compensation u/s.357(1)(b) of Cr.P.C. and the remaining amount shall be paid to the State Exchequer. In case, any failure on the part of the revision petitioner in appearing before the court below as directed above and paying the fine 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. The execution of warrant if any, pending against the revision petitioner shall be deferred till 30.12.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/