IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 27TH SEPTEMBER 2010 / 5TH ASWINA 1932 Crl.Rev.Pet.No. 2652 of 2010() ------------------------------ CRA.260/2004 of SESSIONS COURT, THALASSERY CC.446/2000 of JUDL.MAGISTRATE OF FIRST CLASS COURT, KUTHUPARAMBA .................... REVISION PETITIONER/APPELLANT/ACCUSED: ---------------------------------------------------------------------- M.V.MATHEW KUTTY,S/O.VARGHESE, 42 YEARS,ROAD CONTRACTOR,MUKKATTUKAVUMKAL HOUSE, PO ADAKKATHODU, KELAKAM AMSOM DESOM. BY ADV. SRI.M.C.RATNAKARAN RESPONDENT(S): RESPONDENT/COMPLAINANT: -------------------------------------------------------------------------- 1. P.SURENDRAN,S/O.KRISHNAN, PALORAN HOUSE, PUTHUSSERY , PERAVOOR PO. 2. STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.SUNIL NAIR PALAKKAT R2 BY PUBLIC PROSECUTOR SMT. SUMANGALA P.N. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2652 of 2010 ------------------------------- Dated this the 27th 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 the accused/revision petitioner borrowed a sum of Rs.1,30,000/- from the complainant and towards the discharge of the debt due to the complainant, he issued a cheque dated 27.5.1999 for a sum of Rs.1,30,000/-, 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-Kuthuparamba, by filing a formal 2 Crl. R.P.No.2652 of 2010 complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.446/00. During the trial of the case, the complainant himself was mounted to the box and gave evidence as PW1 and Exts.P1 to P8 were marked, from the side of the complainant. No evidence either oral or documentary 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 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 6 months and also directed to pay a compensation of Rs.1,30,000/- to the complainant u/s.357(3) of Cr.P.C. and no default sentence is fixed. 3. Though an appeal was filed, at the instance of the 3 Crl. R.P.No.2652 of 2010 revision petitioner/accused, by judgment dated 15.11.2008 in Crl.A.260/04, the Court of Sessions Judge, Thalassery, 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.2652 of 2010 revision petitioner submitted that, a lenient view may be taken in the matter of sentence, particularly, considering the fact that the compensation amount ordered by the court below has already been recovered from the revision petitioner. The learned Public Prosecutor on instruction submitted that, a sum of Rs.1,33,000/- has already been recovered from the revision petitioner on 29.7.2010. 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. Therefore, I am of the view that the sentence of imprisonment ordered by the courts below can be modified and reduced to one day simple imprisonment ie., till the rising of the court and the order to pay compensation is also confirmed. As the compensation amount has already been recovered from the revision petitioner, it is for the trial court to release the amount in favour of the complainant u/s.357(3) of Cr.P.C. In the result, this revision petition is disposed of confirming 5 Crl. R.P.No.2652 of 2010 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 to one day simple imprisonment ie., till the rising of the court and the direction to pay compensation is also confirmed. Since the amount of compensation already recovered from the revision petitioner, it is for the trial court to release the amount in favour of the complainant u/s.357(3) of Cr.P.C. and accordingly the trial court is directed to release the amount in favour of the complainant on his application for the same. The revision petitioner is directed to appear before the trial court on 27.10.2010 to receive the modified sentence. The coercive steps if any, pending against the revision petitioner shall be deferred till 27.10.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/