IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 20TH SEPTEMBER 2010 / 29TH BHADRA 1932 Crl.Rev.Pet.No. 2663 of 2010() ------------------------------ CRA.398/2008 of 1ST ADDL. SESSIONS COURT, THRISSUR CC.293/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I,CHALAKUDY .................... REVISION PETITIONER(S): APPELLANT:ACCUSED: --------------------------------------------------------------------------- MRUTHINJAYAN, S/O.KARAPPAN, PONATH HOUSE, P.O. PALLIPORT, MUNAMBAM, ERNAKULAM DISTRICT. BY ADV. SRI.N.K.MOHANLAL RESPONDENT(S): RESPONDENTS/COMPLAINANT NO.1: ----------------------------------------------------------------------------------- 1. FRANCIS, S/O.MICHEAL,PRO.KURIAPPILLY MARBLES, VADAMA P.O., THRISSUR DISTRICT, PIN - 680 736. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADVS. SRI.N.AJITH, SRI.R.SURAJ KUMAR. R2 BY PUBLIC PROSECUTOR SRI. V. TEKCHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2663 of 2010 ------------------------------- Dated this the 20th day of September, 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 due to the complainant, the accused/revision petitioner issued a cheque dated 8.10.2004 for a sum of Rs.65,000/-, 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- Chalakudy, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted 2 Crl. R.P.No.2663 of 2010 C.C.No.293/05. During the trial of the case, the complainant himself was mounted to the box and gave evidence as PW1 and Exts.P1 to P6 were marked, from the side of the complainant. From the side of the defence, DW1 was examined and no documentary evidence adduced. 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 directed to pay a compensation of Rs.51,500/- and the default sentence is fixed as 6 months simple imprisonment. 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 23.12.2009 in 3 Crl. R.P.No.2663 of 2010 Crl.A.398/08, the Court of 1st Addl. Sessions Judge, Thrissur, dismissed the appeal, confirming the conviction and sentence imposed against the revision petitioner. 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 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 4 Crl. R.P.No.2663 of 2010 revision petitioner submitted that, the sentence of imprisonment ordered by the courts below is unreasonable and exorbitant and the same may be set aside and also 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 but subject to other relevant inputs 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 over the punitive aspects. In the present case, the cheque in question is dated 8.10.2004, for an amount of Rs.65,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.65,000/-, which belonged to the complainant is with the revision petitioner for the last 6 years. It is true that the trial court while fixing the compensation, the 5 Crl. R.P.No.2663 of 2010 amount is quantified as only Rs.51,500/-, after subtracting the amount already paid by the accused. Therefore, in the light of the legal position and the facts referred above, I am of the view that the sentence of imprisonment ordered by the courts below can be modified and while granting some time to pay the compensation amount, 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, the sentence of imprisonment ordered by the courts below is modified and reduced into one day simple imprisonment ie., till the rising of the court and the revision petitioner is further directed to pay a sum of Rs.60,000/- to the complainant as compensation u/s.357(3) of Cr.P.C. and the said amount shall be paid within 3 months from today and in case any failure in paying the compensation amount within the stipulated period, the revision petitioner is directed to undergo simple imprisonment for 3 months. Accordingly, the revision petitioner is directed to 6 Crl. R.P.No.2663 of 2010 appear before the trial court on 20.12.2010, 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 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. Execution of warrant if any, pending against the revision petitioner shall be deferred till 20.12.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/