IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 4TH AUGUST 2010 / 13TH SRAVANA 1932 Crl.Rev.Pet.No. 265 of 2010() ----------------------------- CRA.280/2008 of SESSIONS COURT, KASARAGOD CC.173/2008 AND CC NO.176/2008 BY THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE II (ADDITIONAL MUNSIFF), KASARGOD. ............................ REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- K.M.ABDULLA @ BAVA HAJI, BHANGARAKUNNU, NEAR DEVI TAKIES, MAVINAKKATTA, KUMBLA POST, KOIPADY VILLAGE, KASARGOD TALUK & DISTRICT. BY ADV. SRI.T.B.SHAJIMON SMT.GOVINDU P.RENUKADEVI RESPONDENT(S): COMPLAINANT /STATE --------------------------------- 1. M.A.MOHAMMEDKUNHI, S/O.LATE ABDUL RAHMAN, FOUSIYA MANZIL, KUMBLA.P.O, KASARAGOD. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.VENUGOPAL M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN,J --------------------- Crl.R.P.No.265 of 2010 ------------------------------------ Dated this the 4th day of August,2010 O R D E R The accused in two prosecution different cases 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. When this revision petition came up for consideration on 7.4.2010, it is found that the revision petition is defective since the order impugned is against only one appellate court judgment. Though the accused ought to have filed two separate appeals against the common judgment of the trial court in two separate calendar cases. Subsequently, by order dated 7.4.2010 the revision petitioner was directed to pay one more set of court fee in this revision petition and accordingly he was granted two weeks time to pay the requisite court fee. Subsequently, the petitioner paid the additional court fee and also paid court fee in the lower appellate court. Thus it appears that the defect point out on 7.4.2001 is stand cured and clarified. Crl.R.P.No.265 of 2010 2 3. Learned counsel submitted that he may permitted to file appeal in the lower appellate court, as initially only one appeal had filed, though a challenge was the two verdict of the trial court in two separate calendar cases. The learned counsel fairly conceded that there is no contention on merit. Under the above position, I am of the view that no purpose will be served even if the revision petitioner permitted to file one more appeal and it is equally important to note that the beneficiary of the judgments will not get any benefit though there are directions in the orders of the court below. 4. As indicated earlier this revision petition is preferred against the judgment dated 11.12.2009 in Crl.Appeal No.280/2008 by the Courts of Sessions, Kasargod against the common judgment dated 30.8.2008 in C.C.No.173/2008 and 176/2008 of the Court of Judicial First Class Magistrate-II (Add.Munsiff) Kasargod. 5. The case of the complaiant is that as a part of business transaction between the complainant and the accused, the accused was indebted amount of Rs.90,000/- to the complainant and towards the discharge of the said debt the accused issued a Crl.R.P.No.265 of 2010 3 cheque dated 15.12.2007 for an amount of Rs.90,000/- and also another cheque dated 15.11.2007 for Rs.40,000/-. Both the cheques when presented for encashment dishonoured as there was no sufficient funds in the account maintained by the accused and thereafter, though the complaint had caused to send two separate statutory notices informing the accused regarding the dishonour of the cheque and demanding for the payment of the amount covered by the dishonoured cheque, no amount was paid and therefore, the accused committed the offence punishable under Section 138 of the Negotiable Insntrurments Act. With the said allegations initially, the complainant approached the Chief Judicial Magistrate, Kasargod, whereupon cognisance was taken for the offence punishable under Section 138 of the Negotiable Instruments Act and instituted C.C.No.147/2008 with respect to the cheque dated 15.12.2007 for an amount of Rs.90,000/-. Subsequently, the said case was made over to the trial court wherein, the case is renumbered as C.C.No.173/2008. Similarly, the complainant approached the Chief Judicial Magistrate court, Kasargod with respect to cheque dated 15.11.2007 for Rs.40,000/- upon which C.C.No.148/2008 was instituted and Crl.R.P.No.265 of 2010 4 subsequently, made over to the present trial court wherein the case is renumbered as C.C.No.176/2008. 6. On appearance of the accused in both the cases particulars of the offence put to him and he denied the same consequently, the learned Magistrate proceeded with the trial during which the complainant himself gave evidence as PW1. Besides his oral evidence he had also produced Ext.P1 to P10 documents. The accused was examined as DW1 in C.C.No.176/2008. On the basis of the materials and evidence on record the trial court found that two cheques, i.e. Ext.p1 and P6 were issued by the accused towards the disicharge of the legal liability that due to the complainant. Thus, the trial court found that, complainant has established the case against the revision petitioner and accordingly found that the accused is guilty of the offence punishable under Section 138 of the Negotiable Instruments Act and consequently, he was convicted for the said offence. On such conviction in C.C.No.173/2008 in which the cheque for Rs.90,000/- is involved, the revision petitioner senstenced to undergo simple imprisonment for 3 months and also diriecited to pay an amount of Rs.90,000/- as compensation Crl.R.P.No.265 of 2010 5 to the complainant under Section 357(3) of Cr.P.C and in default sentence is fixed as 1 month simple imprisonment. In C.C.No.176/2008 also he is directed to undergo simple imprisonment for 3 months and he is further directed to pay compensation of Rs.40,000/- to the complainant under Section 357(3) of the Cr.P.C and the default sentence is fixed as simple imprisonment for a period of one month. It is also ordered that, on realisation of the compensation amount the same shall be paid to the complainant. It is also made clear that the sentence in each cases will run concurrently . 7. Though the accused was expected to file two separate appeals against the above common verdict of the trial court in two calander cases, he had preferred only one appeal. But without considering the above procedural and legal requirement, the learned Sessions Judge disposed of the said appeal by judgment dated 11.12.2009 in Crl.Appeal no.280/2008 by which though the conviction recorded by the trial court in both the cases were confirmed, the sentences ordered by the trial court in both the cases were modified. Accordingly, in both the cases, sentence of imprisonment reduced to 10 days simple Crl.R.P.No.265 of 2010 6 imprisonment. Whereas the compensation amount fixed by the trial court in both the cases were confirmed but the default sentences in both the cases were enhanced to 2 months simple imprisonent. It is against the above judgment of the lower appellate court and trial court this revision petition is preferred. 8. I have heard the learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. 9. The learned counsel for the revision petitioner fairly conceded that, he has no contention on merits and further submitted that a breathing time may be granted to the revision petitioner to pay the compensation amount and also submitted that the sentence of imprisonment ordered by the trial court stood as modified by the lower court, is unreasonable and need reconsideration. Having regard to the facts and circumstances invloved in the case, I am of the view that the said submission can be considered favourably, but suibject to slight enhancement in the amount of compensation. 10. Ext.P1 cheque is dated 15.12.2007 for an amount of Rs.90,000/- whereas Ext.P6 cheque is dated 15.11.2007 for an Crl.R.P.No.265 of 2010 7 amount of Rs.40,000/-. Thus, it can be seen that altogether sum of Rs.1,30,000/- which belonged to the complainant, is in the hands of the revision petitioner for the last 3 years. 11. 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, considering the above factual inputs and the said legal position, I am of the view that the sentence of imprisonment now ordered by the lower appellate court can be reduced to one day simple imprisonment but the compensation amount fixed by the courts below 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 in both the cases and accordingly in each of the cases the sentence of imprisonment is modified and reduced from 10 days to one day simple imprisonment, i.e, till the rising of the court which shall run concurrently and accordingly the revision petitioner is Crl.R.P.No.265 of 2010 8 further directed to pay a compensation of Rs.1,05,000/- to the complainant under Section 357(3) of Cr.P.C. With respect to C.C.No.173/2008. With respect to C.C.No.176/2008 the complainant is directed to pay a sum of Rs.45,000/- to the complainant as compensation under Section 357(3) of Cr.P.C. In all these cases, the complainant is granted 3 months time to pay the compensation. Accordingly, in both these cases the revision petitioner is directed to appear before the trial court on 4.11.2010 to receive the sentence and to deposit the compensation amount. In case of any failure on the part of the revision petitioner in appearing before the court below as directed above and in making the payment 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. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, JUDGE. pm