IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 3RD AUGUST 2010 / 12TH SRAVANA 1932 Crl.Rev.Pet.No. 2273 of 2010() --------------------------------------- CRA.816/2003 of ADDL.SESSIONS COURT, (ADHOC), ERNAKULAM CC.1109/1999 of JUDL.MAGISTRATE OF FIRST CLASS-I, MUVATTUPUZHA ............................................... REVN. PETITIONER(S): REVISION PETITIONER/ APPELLANT/ACCUSED ---------------------------------------------------------- JIJI MATHEW, AGED 52 YEARS, S/O.MATHEW, PITTAPILLIL ENGINEERING, SAKTHI BUILDING COMBINE, M.C.ROAD, VAZHAPPILLY, MUDAVOOR. BY ADV. SRI.S.DILEEP (KALLAR) RESPONDENT(S): STATE AND COMPLAINANT ------------------------------------------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. R.RAVINDRAN NAIR, PREJEETHA BHAVAN, VELLOORKUNNAM, MUVATTUPUZHA. R1 BY PUBLIC PROSECUTOR MR.VENUGOPAL M.R ADV. SRI.A.C.THOMAS ADHIKARAM FOR R2 SRI.P.FAZIL FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K. MOHANAN, J ---------------------- Crl.R.P.No.2273 OF 2010 ----------------------------------- Dated this the 3rd 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 court below. 2. The case of the complainant is that the accused/revision petitioner, towards the discharge of debt of Rs.2,25,000/-which due to the complainant, the accused issued two cheques Ext.P1 and P2 dated respectively for an amount of Rs.1,00,000/- and Rs.1,25,000/-, which when presented for encashment dishonoured, due to the reason that there was no sufficient fund in the account maintained by the accused and the cheque amounts was not repaid in spite of formal demand notice and thus the revision petitioner has committed the offence punishable under section 138 of Negotiable Instruments Act. With the said allegation, the complainant approached the Judicial First Class Crl.R.P. No.2273/10 2 Magistrate Court, Muvattupuzha, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable instruments Act and instituted C.C.No.1109/1999. During the trial of the case, PW1 was examined from the side of the accused and Exts.P1 to P13 were marked. From the side of the complainant no document was produced, through the accused himself got examined as DW1. On the basis of the available materials and evidence on record, the trial court has found that the cheques in question were issued by the revision petitioner/accused for the purpose of discharging the 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 Negotiable Instruments Act. On such conviction, the trial court sentenced the accused/revision petitioner to undergo simple imprisonment for one year and he is also sentenced to pay a fine of Rs.5,000/-. The default sentence is fixed as three months imprisonment. It is also ordered that if the fine amount is realised, the same shall be given to the complainant as compensation u/s.357(1) of Cr.P.C. The trial court ordered that Crl.R.P. No.2273/10 3 the sentence of imprisonment ordered against accused in CC.No.615/1999 and in the present case shall run concurrently. 3. Though an appeal was filed by accused/revision petitioner, by judgment dated 31.1.2005 in Criminal Appeal No.816/03, the court of Additional Sessions Judge,(Adhoc-I), Ernakulam allowed the appeal only in part and the sentence of simple imprisonment for one year awarded by the lower court to the petitioner was set aside. It is the above conviction and sentence challenged in this revision petition. 4. I have head 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. The counsel for the revision petitioner further submitted that the courts below has committed wrong in convicting the revision petitioner. 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 Crl.R.P. No.2273/10 4 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, learned counsel for the revision petitioner submitted that the sentence of imprisonment ordered by the court below is highly unreasonable and exorbitant and also submitted that the sentence of fine ordered by the court below may be set aside. Revision petitioner may be permitted to pay compensation to the complainant. Having regard to the facts and circumstances involved in the case, I am of the view that this submission can be considered favourably. 7. The two cheques involved in this case are altogether for an amount of Rs.2,25,000/- as per the findings of court below, which approved by this court, the said amount belongs to the complainant but the same is with the revision petitioner till now. The apex court in the 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. On Crl.R.P. No.2273/10 5 hearing the counsel appearing for both sides and considering the above facts and settled legal position, I am of the view that the revision petitioner can be directed to pay an amount as compensation to the respondent/complainant. In the result, this revision petition is disposed of confirming the the conviction against revision petitioner u/s 138 of Negotiable Instrument Act, as recorded by the lower appellate court. Accordingly in modification of the sentence to pay fine, the revision petitioner is sentenced to undergo simple imprisonment for one day, ie., till the raising of the court and he is also directed to pay a sum of Rs.3,25,000/- to the complainant as compensation within four months from today u/s.357(3) Cr.P.C. and in case of any failure in paying the amount within the above stipulated time, revision petitioner is directed to undergo simple imprisonment for a period of two months. Accordingly the revision petitioner is directed to appear before the trial court on 3.12.2010 to receive the sentence and pay compensation amount as fixed by this court. The revision petitioner is free to pay compensation amount either directly to the complainant or by remitting the same in the trial court, whichever subject to the Crl.R.P. No.2273/10 6 satisfaction of the learned Magistrate. In case of any failure on the part of the revision petitioner in appearing before the court below at the above date and making payment, the trial court is free to take coercive steps to secure the presence of the petitioner and to execute the sentence and for realisation of the compensation amount. This criminal revision petition is disposed of accordingly. V.K. MOHANAN, JUDGE. Sou.