IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 28TH OCTOBER 2010 / 6TH KARTHIKA 1932 Crl.Rev.Pet.No. 3036 of 2010() ------------------------------------ CRA.546/2008 of I ADDL. SESSIONS COURT, PALAKKAD ST.2170/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PALAKKAD .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED ----------------------------------------------------- RAMAN,S/O.LATE ARU, ORACHIKULAM, ANDALAMKADU, KODUNTHIRAPPULY POST, PALAKKAD. BY ADVS. SRI.T.K.SANDEEP RESPONDENT(S): RESPONDENT/COMPLAINANT & STATE ------------------------------------------------------------------- 1. C.MASILAMANI, S/O.CHAMI MOOTHAN, 27/759(1),THIRUPURAIKAL COLONY, MOOTHANTHARA, KOPPAM AMSOM, PALAKKAD-678 02. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.P.N.SUMANGALA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SVS/ V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.3036 of 2010 ------------------------------- Dated this the 28th 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.1,25,000/- and towards the discharge of the said liability, the accused issued a cheque dated 22.6.2006 for a sum of Rs.1,25,000/-, 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 Judl. First Class Magistrate Court-1, Palakkad, by filing a formal complaint, upon 2 Crl. R.P.No.3036 of 2010 which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.2170/06. During the trial of the case, PW1, the complainant himself 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 one year and also ordered the revision petitioner to pay a sum of Rs.1,25,000/- to the complainant as compensation u/s.357(3) of Cr.P.C., failing which the revision petitioner was directed to undergo simple imprisonment for 3 3 Crl. R.P.No.3036 of 2010 months. 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 26.10.2009 in Crl.A.546/08, the Court of Sessions Judge-Palakkad Division, allowed the appeal only in part and thus while confirming the conviction, the sentence is modified and accordingly in suppression of the substantial sentence, the revision petitioner is sentenced to pay a fine of Rs.1,26,000/- and in default he is directed to undergo simple imprisonment for 1 month. It is also ordered that out of the fine amount, a sum of Rs.1,25,000/- shall be paid 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 4 Crl. R.P.No.3036 of 2010 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 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 positively 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 5 Crl. R.P.No.3036 of 2010 over the punitive aspects. In the present case, the cheque in question is dated 22.6.2006, that too for an amount of Rs.1,25,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.1,25,000/- which belonged to the complainant is with the revision petitioner for the last 4 years. Considering the above facts and settled legal position, I am of the view that, while granting some time to the revision petitioner to pay fine, 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 as ordered by the appellate court, the fine amount is enhanced and the revision petitioner is directed to pay a fine of Rs.1,40,000/- within 2 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 3 months. 6 Crl. R.P.No.3036 of 2010 Accordingly, the revision petitioner is directed to deposit the above fine amount in the trial court on 28.12.2010. In case, any failure on the part of the revision petitioner in 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. On realisation of the fine amount, a sum of Rs.1,35,000/- 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. The execution of warrant if any, pending against the revision petitioner shall be deferred till 28.12.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/