IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 19TH AUGUST 2010 / 28TH SRAVANA 1932 Crl.Rev.Pet.No. 2397 of 2010() ------------------------------ CRA.967/2007 of ADDL. SESSIONS COURT (ADHOC)-II, TRIVANDRUM ST.318/2006 of JUDICIAL FIRST CLASS MAGISTRATE'S COUIRT II,VARKALA .................... REVISION PETITIONER(S): APPELLANT/ACCUSED: ---------------------------------------------------------------------------- A.H.DAVOOD, C/O.OFFICE COMANDOR (CIVI), 26 FIELD WORK SHOP COMPANY-56, APO. BY ADVS. SRI.B.S.SWATHY KUMAR, SMT.S.MEERA, SMT.P.A.ANITHA. RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE: ------------------------------------------------------------------------------------------ 1. SYAMKUMAR, S/O.CHELLAPPAN PILLAI, GOKULAM, CHEMMARUTHI VILLAGE, MUTTAPPALAM, VARKALA. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. VENUGOPAL.M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2397 of 2010 ------------------------------- Dated this the 19th day of August, 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 towards the discharge of a debt due to the complainant, issued a cheque dated 21.10.2004 for a sum of Rs.1,50,000/-, 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-I, Varkala, by filing a formal complaint, upon which Crl. R.P.No.2397 of 2010 2 cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.465/05 and subsequently the case was made over to the Judl. First Class Magistrate Court-II, Varkala, wherein the case is renumbered as S.T.No.318/06. During the trial of the case, PW1, the complainant himself was examined from the side of the complainant and Exts.P1 to P7 were marked. No evidence 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 4 months and to pay a sum of Rs.1,50,000/- to the complainant as compensation u/s.357(3) of Cr.P.C. and the default sentence was fixed as 2 Crl. R.P.No.2397 of 2010 3 months simple imprisonment. 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 16.3.2010 in Crl.A.967/07, the Court of Addl. Sessions Judge-II, Thiruvananthapuram, allowed the appeal only in part, confirming the conviction of the revision petitioner u/s.138 of Negotiable Instruments Act and modifying and reducing the sentence to 1 day simple imprisonment, ie., till the rising of the court and the sentence to pay compensation was also confirmed. It is also ordered that, on realisation of the compensation, the entire amount shall be paid to the complainant and the default sentence was fixed as 4 months simple imprisonment. It is also directed that the revision petitioner shall appear before the trial court on 15.4.2010 to receive the sentence and to pay the compensation amount. 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 Crl. R.P.No.2397 of 2010 4 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 deposit 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 but subject to other facts and circumstances involved in the case. 7. The apex court in a recent decision reported in Damodar Crl. R.P.No.2397 of 2010 5 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 21.10.2004, for an amount of Rs.1,50,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.1,50,000/-, which belonged to the complainant is with the revision petitioner for the last 6 years. Therefore, considering the above legal position and the facts referred above, while granting some time to pay the compensation amount, the same can be enhanced slightly, which will be sufficient to meet the ends of justice. 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 of imprisonment as modified and fixed by the lower appellate court, the revision petitioner is directed to pay a sum of Rs.1,65,000/- to the Crl. R.P.No.2397 of 2010 6 complainant as compensation u/s.357(3) of Cr.P.C., within 3 months from today and in case of default in paying the compensation amount, the revision petitioner is directed to undergo simple imprisonment for 4 months. Accordingly, the revision petitioner is directed to appear before the trial court on 16.11.2010, to receive the sentence of imprisonment and to pay the compensation amount as fixed 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 making the payment 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. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/