IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 14TH JULY 2010 / 23RD ASHADHA 1932 Crl.Rev.Pet.No. 35 of 2006() ---------------------------- CRA.583/2004 of SESSIONS COURT, KOTTAYAM CC.290/2004 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED :- ------------------------------------------------------------------- SHAJI K.S., KOTTARATHIL HOUSE, KULATHOOR P.O., KANAKKARY, KOTTAYAM. BY ADV. SRI.BIMAL K.NATH SRI.SREEVALSAN V. RESPONDENT(S)/COMPLAINANT & STATE :- --------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. KAUSALIYA PRASAD, AJESH BHAVAN, PERUMBAIKADU VILLAGE, S.H. MOUNT P.O., KOTTAYAM. ADV. SRI.R.S.KALKURA FOR R2 PUBLIC PROSECUTOR MR.M.R.VENUGOPAL FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt V.K.MOHANAN, J. ~~~~~~~~~~~~~ Crl.R.P.No.35 of 2006 ~~~~~~~~~~~~~~~ Dated this the 14th day of July 2010 O R D E R The accused in a prosecution for an offence u/s.138 of the 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 a debt due to the complainant, the accused issued Ext.P1 cheque dated 16.9.2002 for an amount of Rs.20,000/-, which when presented for encashment dishonoured for want of sufficient fund in the account maintained by the accused and the cheque amount was not repaid in spite of a formal demand notice and thus the revision petitioner has committed the offence punishable u/s.138 of the Negotiable Instruments Act. With the said Crl.R.P.No.35 of 2006 -: 2 :- allegation, the complainant approached the Court of Chief Judicial Magistrate, Kottayam by filing a formal complaint, upon which cognizance was taken u/s.138 of the Negotiable Instruments Act and instituted C.C.No.290/2004. During the course of the trial, the complainant herself examined as PW1 and produced Exts.P1 to P6 documentary evidences. Though no defence exhibit was produced, one witness namely; DW1 was examined 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 held 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 the Negotiable Instruments Act. On such conviction, the trial court sentenced the revision petitioner/accused to undergo simple imprisonment for a Crl.R.P.No.35 of 2006 -: 3 :- period of 2 months and to pay a fine of Rs.20,000/- to the complainant and default sentence is fixed as 7 days' simple imprisonment. It is also ordered that on realization of the fine amount, the same shall be given to the complainant as compensation. 3. Though an appeal was filed by the revision petitioner challenging the above conviction and sentence ordered by the trial court, by judgment dated 16.8.2005 in Crl.A.No.583/2004, the Court of Sessions, Kottayam allowed the appeal only in part and thus, while confirming the conviction ordered by the trial court, the sentence imposed against the revision petitioner is modified and reduced and accordingly the revision petitioner is sentenced to simple imprisonment for a period of one week and also directed, instead of fine, to pay compensation of Rs.20,000/- to the complainant under Sec.357(3) of Cr.P.C. The default sentence is fixed as two weeks simple imprisonment. It is the above orders are challenged in this revision petition. Crl.R.P.No.35 of 2006 -: 4 :- 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. The learned counsel for the revision petitioner vehemently argued that the cheque in question is the one which entrusted with the husband of the complainant connected with chitty transaction towards security and out of that transaction, only a sum of Rs.800/- is due to the husband of the complainant. It is also the case of the learned counsel for the revision petitioner that in order to substantiate the above contention of the defence, though the pass book issued by the husband of the Crl.R.P.No.35 of 2006 -: 5 :- complainant which contains the handwriting of the son of the complainant was produced, the same was not admitted by the trial court as they have denied the contents of the pass book. Therefore, the learned counsel submitted that if the matter is remanded back to the trial court with a provision for examination of the pass book by an expert, the result would be a different one. 6. I am unable to accept the above contention. Absolutely there is no evidence to show that the cheque in question is the one which entrusted with the husband of the complainant at the same time of the alleged chitty transaction between the accused and the husband of the complainant. There is also no evidence or materials to show that such a cheque was given to the complainant for the purpose of the present prosecution. In the absence of materials and evidence to show that the cheque in question is the one which entrusted by the accused with the husband of the complainant and no time and effective steps were Crl.R.P.No.35 of 2006 -: 6 :- taken to examined the pass book and the handwriting contained therein by an expert, the plea of the defence cannot be entertained at this stage. Apart from that, the trial court as well as the lower appellate court based upon available materials and evidence came into conclusion that the cheque in question was issued by the accused/revision petitioner towards discharge of his liability to the complainant. The above finding on fact is remaining intact as the revision petitioner is miserably failed to make out the case to interfere with the such concurrent finding. Therefore, this revision petition is without any merit and accordingly, the conviction recorded by the trial court as well as the lower appellate court is confirmed. 7. The learned counsel for the revision petitioner submitted that the sentence of imprisonment ordered by the lower court is exorbitant and the same may be set aside and also submitted that a breathing time may be granted to the revision petitioner to pay the amount of compensation. Crl.R.P.No.35 of 2006 -: 7 :- 8. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered favourably but subject to other facts and circumstances involved in the case. In the present case, the cheque in question is dated 16.9.2002, thus as per the records and the findings of the court below, which approved by this Court, a sum of Rs.20,000/- which belonged to the complainant is with the revision petitioner for the last 8 years. However, the Apex Court in the decision in Damodar.S.Prabhu v. Sayed Babalal.H [J.T. 2010 (4) SC 457] has held that in the case of dishonour of cheques, the compensatory aspect of the remedy shall be given preference than the punitive aspect. Therefore, according to me especially in the light of the above facts and circumstances involved in the case and the above settled legal position, the sentence of imprisonment now ordered by the lower appellate court can be modified and reduced and at the same time, the compensation amount Crl.R.P.No.35 of 2006 -: 8 :- can be enhanced slightly. In the result, this revision petition is disposed of confirming the conviction as recorded by the courts below against the revision petitioner under Sec.138 of the N.I.Act. Accordingly, in modification of the sentence of imprisonment ordered by the trial court, the revision petitioner is sentenced to undergo simple imprisonment for one day ie; till the rising of the court and the revision petitioner is directed to pay a sum of Rs.23,000/- to the complainant as compensation under Sec.357(3) of Cr.P.C. within 3 months from today and in case of any default in paying the compensation within the above stipulated time, the revision petitioner is directed to undergo simple imprisonment for a period of 2 months. Accordingly, the revision petitioner is directed to appear before the trial court on 14th October, 2010 to receive the sentence of imprisonment and to pay the compensation amount. In case any failure on the part of the revision petitioner in Crl.R.P.No.35 of 2006 -: 9 :- appearing before the trial court as directed above and making the deposit 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. V.K.MOHANAN, JUDGE. Jvt