IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 8TH FEBRUARY 2011 / 19TH MAGHA 1932 Crl.Rev.Pet.No. 416 of 2011() ----------------------------------------- CRA.225/2009 of ADDL. SESSIONS COURT (ADHOC-1), PATHANAMTHITTA ST.1897/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT, THIRUVALLA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------------------- SOMALAL SHAJI,AGED 44 YEARS, S/O.K.N.KUTTAPPAN NAIR, SAROJA SADANAM, KIZHAKKAN OTHERA MURI,ERAVIPEROOR VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA. BY ADVS. SRI.G.RAJAGOPAL SMT.N.RENJINEE DEVI RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE ------------------------------------------------------------------------------------------ 1. ARJUNA PANICKER, SANTHOSH BHAVAN, VALLAMKULAM KIZHAKKU MURI, ERAVIPEROOR VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT, PIN- 689 542(DIED) 2. P.S.SUSHEELA,AGED ABOUT 63 YEARS, W/O.ARJUNA PANICKER,SANTHOSH BHAVAN, VALLAMKULAM KIZHAKKU MURI,ERAVIPEROOR VILLAGE, THIRUVALLA TALUK,PATHANAMTHITTA DISTRICT, PIN- 689 542. 3. STATE OF KERALA,REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R3 BY PUBLIC PROSECUTOR SMT. REKHA C. NAIR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts V.K. MOHANAN, J. ------------------------------------------------- Crl.R.P.No. 416 of 2011 ------------------------------------------------- Dated this the 08th day of February, 2011 O R D E R The revision petitioner is the accused in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881(for short 'the N.I.Act'), now stands convicted for the said offence and sentenced to undergo simple imprisonment for two months and also directed him to pay an amount of `.1,30,000/- as compensation to the complainant under Section 357(3) of Cr.P.C, in default to undergo simple imprisonment for two months more. 2. The above conviction and sentence imposed against the revision petitioner by judgment dated 13.08.2009 in S.T. No.1897 of 2006 of the Court of the Judicial Magistrate of I Class, Thiruvalla has challenged by the revision petitioner by preferring Crl. Appeal No. 225/2009. But by judgment dated 27.10.2010 the Court of Additional District and Sessions Judge (Ad-hoc) Court-I, Pathanamthitta dismissed the above appeal, confirming the conviction and sentence. In this revision petition the challenge is against the above Crl.R.P.No. 416 of 2011 2 conviction and sentence. 3. I have heard Sri.G.Rajagopal learned counsel appearing for the petitioner. I have perused the judgment of the Courts below. 4. Learned counsel vehemently submitted that the trial court as well as the appellate court has miserably failed in appreciating the evidence and also failed to accept the defence case. The learned counsel submitted that when the complainant was examined he had admitted that there was a transaction between the complainant and the accused with respect to a sum of `.25,000/- but he denied receipt of the cheque in the said transaction and therefore the version of PW1 cannot be believed. According to the learned counsel, the revision petitioner has established in the court below that the cheque in question was handed over to one Santhosh, son of the complainant, who was conducting chitty business, and when the accused received a sum of `.10,000/- from the son of the complainant, he issued a cheque in question as a security and misusing the same the Crl.R.P.No. 416 of 2011 3 present complaint is prepared. Trial Court as well as the appellate court was not prepared to accept the above arguments as there is no material or evidence and the petitioner failed to make out a believable story to rebut the presumption. Admittedly, there was transaction between the complainant as well as the accused in the present case. Exhibit P1 cheque which contain the signature of the revision petitioner and the same belongs to the account maintained by the revision petitioner and the cheque produced from the possession of the complainant. The complainant has also adduced evidence regarding transaction connected with Exhibit P1 cheque. As correctly discussed and observed by the courts below, the complainant, on demand by the accused/revision petitioner, paid a sum of `.1,30,000/- to the accused and towards the discharge of the said liability the accused issued the cheque in question. On the basis of Exhibit P1 cheque, at the most what can be gathered is that the deposition made by PW1 with respect to `.25,000/- may be a falls one. But that is Crl.R.P.No. 416 of 2011 4 not sufficient to hold that the cheque in question was entrusted with the son of the complainant. As rightly discussed and found by the trial court, if the case of the revision petitioner, is true regarding the receipt of `.10,000/- from the son of the complainant and paying of `.125/- per day towards the repayment of the said amount,. naturally there would have some receipt or document. But nothing produced by the revision petitioner to show such transaction and also produced no document or evidence to show that the cheque in question was entrusted with the son of the complainant. In the absence of any such materials, it cannot be said that the revision petitioner/accused has succeeded in discharge his burden of rebutting the presumption, otherwise available in favour of the complainant under Section 139 of the N.I. Act. Therefore, I find no reason to interfere with the concurrent findings of the court below. 5. As this court is not inclined to interfere with the order of conviction the learned counsel submitted that the Crl.R.P.No. 416 of 2011 5 sentence of simple imprisonment ordered by the court below is unreasonable and therefore lenient view may be taken in the matter of sentence. Having regard to the facts involved in the case, according to me, the said submission requires consideration. 6. The cheque in question is dated 19.07.2006 that too for an amount of `.1,30,000/-. As per the findings of the court below which approved by this Court, the said amount is due to the complainant. Having regard to the facts and circumstances involved in the case, and in the light of the decision of the Apex Court reported in Damodar.S.Prabhu v. Sayed Babalal.H (JT 2010(4) SC 457) wherein it was held that in the case of dishonour of cheques, the compensatory aspect of the remedy should be given priority over the punitive aspects, I am of the view that the sentence of imprisonment requires modification and the petitioner can grant sometime to compensate the complainant. In the result this revision petition is disposed of confirming the conviction of the revision petitioner under Crl.R.P.No. 416 of 2011 6 Section 138 of the N.I.Act as recorded by the courts below. Accordingly, in modification of the sentence of imprisonment, the same is reduced into one day simple imprisonment that till the rising of the court below. Petitioner is further sentenced to pay a fine of `.1,56,000/- within three months from today and in case of default in paying the fine amount within the above stipulated time, the revision petitioner is directed to under go simple imprisonment for a period of three months. Accordingly, the revision petitioner is directed to appear before the trial court on 10.05.2011 to receive the modified sentence and to pay the fine amount fixed by this Court. If there is any fault on the part of the revision petitioner in appearing before the trial court and in paying the fine amount on or before the above date, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence and for realization of the fine amount. On realization of the fine amount a sum of `.1,50,000/- shall be paid to the complainant as Crl.R.P.No. 416 of 2011 7 compensation under section 357(1)(b) of Cr.PC. The remaining amount of `.6,000/- shall be paid to the state exchequer. Coercive steps, if any, pending against the revision petitioner shall be deferred till 10.05.2011. V.K. MOHANAN, JUDGE. rkc