IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 18TH OCTOBER 2010 / 26TH ASWINA 1932 Crl.Rev.Pet.No. 3078 of 2010 (D) ------------------------------ CRA.243/2009 of SESSIONS COURT, KASARAGOD CC.397/2008 of JUDL. FIRST CLASS MAGISTRATE COURT-II (ADDL. MUNSIFF), KASARAGOD .................... REVN. PETITIONER/APPELLANT/ACCUSED ---------------------------------------------------------------- A.M.ZUBAIR, S/O.A.MAHIN HAJI, RESIDING AT THEKKIL FERRY, P.O.THEKKIL FERRY, KASARAGOD TALUK. BY ADVS. SRI.M.SASINDRAN SRI.JOHNY THOMAS RESPONDENTS/ RESPONDENTS/COMPLAINANT AND STATE ---------------------------------------------------------------------------------------- 1. K.V.KUNHIKANNAN, PRO.BINDU JEWELLERY, KASARAGOD 671121. 2. STATE - REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BYPUBLIC PROSECUTOR, SMT.SUMANGALA.P.N. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.3078 of 2010 ------------------------------- Dated this the 18th 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, towards the discharge of the legally enforceable debt, the accused/revision petitioner issued a cheque dated 7.8.2001 for a sum of Rs.2,50,000/-, 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 Chief Judl. Magistrate Court-Kasaragod, by filing a formal complaint, upon which 2 Crl. R.P.No.3078 of 2010 cognizance was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.491/01. As there was no appearance of the accused, the case was transferred to the Register of Long Pending Cases and numbered as LPC No.71/03 and when the accused subsequently surrendered, the case was refiled by the Chief Judicial Magistrate as C.C.No.264/08 and subsequently transferred to the Court of Judicial First Class Magistrate-II (Addl.Munsiff)-Kasaragod, there the case was renumbered as C.C.No.397/08. 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. From the side of the defence, DW1 the accused himself was examined and no documentary 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 3 Crl. R.P.No.3078 of 2010 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 also directed the revision petitioner to pay a sum of Rs.2,50,000/- 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 months. 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 4.9.2010 in Crl.A.243/09, the Court of Sessions-Kasaragod, 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 4 Crl. R.P.No.3078 of 2010 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 conviction recorded by the courts below, the learned counsel for the revision petitioner submitted that the sentence of imprisonment imposed against the revision petitioner is unreasonable and exorbitant and it require to be set aside and further 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 other facts and circumstances involved in the case. 5 Crl. R.P.No.3078 of 2010 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 7.8.2001, that too for an amount of Rs.2,50,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.2,50,000/- which belonged to the complainant is with the revision petitioner for the last 9 years. Considering the above facts and settled legal position, I am of the view that the sentence of imprisonment ordered against the revision petitioner can be modified and reduced and while granting some time to the revision petitioner 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. 6 Crl. R.P.No.3078 of 2010 Accordingly, the sentence of imprisonment awarded by the courts below is modified and reduced to one day simple imprisonment ie., till the rising of the court. Whereas, the compensation amount ordered by the appellate court u/s.357(3) of Cr.P.C. is enhanced to the tune of Rs.3,00,000/-, which shall be paid by the revision petitioner, within 3 months from today and in case of default in paying the compensation amount within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for 6 months. Accordingly, the revision petitioner is directed to appear before the trial court on 18.1.2011, to receive the sentence of imprisonment and to pay the compensation amount as directed 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 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. The execution of warrant if any, pending against the revision 7 Crl. R.P.No.3078 of 2010 petitioner shall be deferred till 18.1.2011. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/