IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 19TH AUGUST 2010 / 28TH SRAVANA 1932 Crl.Rev.Pet.No. 2526 of 2010() ------------------------------ CRA.302/2008 of THE ADDL.DISTRICT AND SESSIONS COURT(ADHOC) FAST TRACK COURT-II, PATHANAMTHITTA CC.853/2002 of JUDL.MAGISTRATE OF FIRST CLASS COURT, THIRUVALLA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- T.D.JOSHY, ERUMBURU HOUSE, KULATHUR P.O., KOTTANGAL VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT. BY ADV. SRI.ABRAHAM SAMSON SMT.LOVELY SAMSON RESPONDENT(S): COMPLAINANT & STATE: ----------------------------------- 1. ANEEZ A.ANEEZ, MELEKUTTU HOUSE, VAIPUR P.O., KOTTANGAL VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT, PIN-689 585. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM, KOCHI-31. PUBLIC PROSECUTOR SMT.PUSHPALATHA.M.K. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN,J --------------------- Crl.R.P.No.2526 of 2010 ------------------------------------ Dated this the 19th day of August,2010 O R D E R The accused in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') approached this Court by preferring the above revision petition challenging his conviction and sentence, imposed as per judgments of the trial court as well as the lower appellate court. 2. The case of the respondent/complainant against the accused/revision petitioner is that towards the discharge of a debt due to the complainant, he issued a cheque dated 06.09.2001 for a sum of Rs.3,30,000/- which, when presented for encashment, was dishonoured for want of sufficient fund in the account maintained by the revision petitioner and the petitioner failed to pay the cheque amount, even though he was requested for the same by issuing a statutory notice. With the said allegation, the complainant approached the Judicial First Class Magistrate Court Thiruvalla whereupon C.C.No.853/2002 was instituted taking cognizance for the offence under Section 138 of the N.I.Act. During the trial of the above case, the respondent/complainant adduced his evidence consisting of the Crl.R.P.No.2526 of 2010 2 documentary evidence such as Exts.P1 to P7 and the oral evidence of Pws.1,2 and 3 were examined. From the side of defence DW1 was examined. 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 courts held that, the complainant has established the case against the revision petitioner/accused and consequently, found that the accused is guilty and thus he is convicted under Section 138 of the N.I.Act. On such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment for 6 months u/s.138 of N.I.Act and he is directed to pay Rs.3,30,000/-to the complainant as compensation u/s.357(3) Cr.P.C. No default sentence is fixed. 3. Though an appeal was filed against the above conviction and sentence, by the revision petitioner/accused, as per judgment dated 09.06.2000 in Crl.Appeal No.302/2008, the Court of Sessions Judge, (Fast Track Court II), Pathanamthitta dismissed the appeal and confirming the conviction and sentence. 4. I have heard the learned counsel appearing for the Crl.R.P.No.2526 of 2010 3 revision petitioner and also perused the judgments of the courts below. 5. Reiterating the stand taken by the defence during the trial as well as the appellate stage, the learned counsel for the revision petitioner submitted that the complainant has not established the transaction, execution and issuance of the cheque. The above submission is purely on the basis of the facts, evidence and materials on record which are already considered in detail by the trial court as well as the lower appellate court. The petitioner miserably failed to make out a case so as to interfere with such concurrent findings arrived on by the courts below. Therefore, the conviction recorded by the courts below is only required to be approved. I do so. 6. The learned counsel for the revision petitioner submitted that a breathing time may be granted to the revision petitioner to receive the sentence and to pay the amount ordered by the courts below. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered and some time can be granted to the revision petitioner. Crl.R.P.No.2526 of 2010 4 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 rpesent case, the cheque in question is dated 06.09.2001, for an amount of Rs.3,30,000/-. Thus as per the records and the findings of the courts below, which approved by this Court, a sum of Rs.3,30,000/-, which belonged to the complainant, with the revision petitioner for the last 9 years. Considering the above facts and legal position, I am of the view that, the sentence of imprisonment ordered by the courts below can be modified, whereas the compensation amount can be enahanced is slightly and the petitioner granted 3 months time to pay the compensation. 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 trial court. Accordingly, the sentence of imprisonment, ordered by the court below is modified and reduced to one day simple imprisonment and accordingly, the revision petitioner is directed to undergo Crl.R.P.No.2526 of 2010 5 simple imprisonment for one day that till the rising of the court. The revision petitioner further directed to pay a sum of Rs.3,45,000/- as compensation to the complainant under Section 357(3) of Cr.P.C. within 3 months from today. In default in payment of the compensation, the revision petitioner is directed to undergo simple imprisonment for 3 months. Accordingly, the revision petitioner is directed to appear before the trial court on 16.11.2010 to receive the sentence and to pay the amount. In case any failure on the part of the revision petitioner in appearing before the court below as directed above and in making the payment of 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. The execution of the warrant if any against the revision petitioner shall be referred till 16.11.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, JUDGE. pm