IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 14TH JULY 2010 / 23RD ASHADHA 1932 Crl.Rev.Pet.No. 2022 of 2010() ------------------------------ CRA.863/2008 of ADDL.DISTRICT & SESSIONS JUDGE (ADHOC-III), NORTH PARAVUR. CC.1153/2004 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA .................... REVISION PETITIONER/APPELLANT/ACCUSED :- --------------------------------------------------------------------- V.G.JOY, AGED 60, VADASSERY HOUSE, KUTTIKKATTUKKARA, UDYOGAMANDAL P.O., BY ADV. SRI.K.S.RAJEEV (ALUVA) RESPONDENT(S)/RESPONDENTS/STATE/COMPLAINANT :- ----------------------------------------------------------------------------------- 1. M/S.SURYA AUTO FINANCE, MOOZHIKULAM, REPT, ITS MANAGING PARTNER, T.K.PIOUS, THADIKKARAN HOUSE, MOOZHIKULAM,PARAKKADAVU, 2. STATE OF KERALA REP BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. R1 BY SMT.ROSE MICHAEL R2 BY PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt V.K.MOHANAN, J. ~~~~~~~~~~~~~ Crl.R.P.No.2022 of 2010 ~~~~~~~~~~~~~~~~~ Dated this the 14th day of July 2010 O R D E R The accused in a prosecution for an offence u/s.138 of the 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 debt due to the complainant, the accused issued a cheque dated 8.1.2004 for an amount of Rs.16,267/-, which when presented for encashment dishonoured for want of sufficient fund in the account maintained by the accused and the cheque amount was not repaid in spite of a formal demand notice and thus the revision petitioner has committed the offence punishable Crl.R.P.No.2022 of 2010 -: 2 :- u/s.138 of the Negotiable Instruments Act. With the said allegation, the complainant approached the Judicial First Class Magistrate-I, Aluva by filing a formal complaint, upon which cognizance was taken u/s.138 of the Negotiable Instruments Act and instituted C.C.No.1153/2004. During the course of the trial, the complainant himself examined as PW1 and produced Exts.P1 to P7 documentary evidences. Even though there was no defence witness, the accused has produced Exts.D1 and D2 series of documentary evidences. 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 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 the Negotiable Instruments Act. On such conviction, the trial court sentenced the revision Crl.R.P.No.2022 of 2010 -: 3 :- petitioner/accused to undergo simple imprisonment for a period of 3 months and to pay a sum of Rs.16,300/- as compensation to the complainant under Sec.357(3) of Cr.P.C. and default sentence is fixed as 60 days' simple imprisonment. 3. Though an appeal was filed challenging the above conviction and sentence, by judgment dated 15.12.2009 in Crl.A.No.863/2008, the court of Additional District & Sessions Judge (Adhoc-III), North Paravur dismissed the appeal confirming the conviction and sentence imposed against the revision petitioner by the trial court. 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 Crl.R.P.No.2022 of 2010 -: 4 :- 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 was endorsed by the courts below against the revision petitioner u/s.138 of Negotiable Instruments Act. 6. The learned counsel for the revision petitioner submitted that a breathing time may be granted to the revision petitioner to pay the compensation amount. 7. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered favourably but subject to other facts and circumstances involved in the case. The cheque in question is dated 8.1.2004 and therefore, as per the records and findings of the courts below, which approved by this Court, a sum of Rs.16,267/- belonged to the complainant is with the revision petitioner for the last 6 years. The Apex Court in the decision in Crl.R.P.No.2022 of 2010 -: 5 :- Damodar.S.Prabhu v. Sayed Babalal.H [J.T. 2010 (4) SC 457] has held that in the case of dishonour of cheques, the compensatory aspect of the remedy shall be given preference than the punitive aspect. Considering the above facts and circumstances and the above settled legal position, I am of the view that the sentence of imprisonment can be avoided considering the facts involved particularly the fact that the revision petitioner has crossed the age of 60 years and at the same time, the amount of compensation ordered by the court below can be enhanced slightly. In the result, this revision petition is disposed of confirming the conviction as recorded by the trial court against the revision petitioner under Sec.138 of the N.I.Act. Accordingly, while setting aside the sentence of imprisonment ordered by the court below, the revision petitioner is sentenced to pay a fine of Rs.18,500/- which shall be paid within 3 months from today and in default in paying the fine amount within the stipulated time, the Crl.R.P.No.2022 of 2010 -: 6 :- revision petitioner is directed to undergo simple imprisonment for a period of 3 months. On realization of the fine amount, the entire amount shall be paid to the complainant under Sec.357(1)(b) of Cr.P.C. Accordingly, the revision petitioner is directed to deposit the fine amount on or before 14th October, 2010. In case any failure on the part of the revision petitioner in making the deposit 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. V.K.MOHANAN, JUDGE. Jvt