IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 1ST JULY 2010 / 10TH ASHADHA 1932 Crl.Rev.Pet.No. 1967 of 2010() ------------------------------ CRA.550/2008 of ADDL. DISTRICT & SESSIONS COURT, FAST TRACK-I, THRISSUR ST.3537/2003 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THRISSUR .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED :- ------------------------------------------------------------------- THYAGARAJAN, S/O.APPU, "SREE", VALAPPAD VENNIKKAL HOUSE, FRIENDS NAGAR, PANAMUCK, NEDUPUZHA (PO), THRISSUR - 680027. BY ADV. SRI.K.A.SATHEESA BABU RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE :- ------------------------------------------------------------------------------------- 1. THOMAS, S/O. LAZAR, VADAKKAN HOUSE, KANIMANGALAM P.O., THRISSUR – 680 027. 2. THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR.M.R.VENUGOPAL THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt V.K.MOHANAN, J. ----------------------------- Crl.R.P.No.1967 of 2010 --------------------------------- Dated this the 1st 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 the accused/revision petitioner, towards the discharge of a debt due to the complainant, issued a cheque dated 30.5.2003 for Rs.1,20,000/-, 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 in spite of a formal demand notice and thus the revision petitioner has committed the offence punishable u/s.138 of the Negotiable Instruments Act. With the said allegation, the complainant approached the Judicial First Crl.R.P.No.1967 of 2010 : 2 : Class Magistrate-II, Thrissur by filing a formal complaint, upon which cognizance was taken u/s.138 of the Negotiable Instruments Act and instituted S.T.No.3537 of 2003. During the trial of the case, PW1 was examined from the side of the complainant and Exts.P1 to P6 were marked. From the side of the defence, DW1 was examined and no documentary evidence was adduced. 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 the Negotiable Instruments Act. On such conviction, the trial court sentenced the revision petitioner/accused to undergo simple imprisonment for 3 months and to pay compensation of Rs.1,20,000/- to the complainant under Sec.357(3) of Crl.R.P.No.1967 of 2010 : 3 : Cr.P.C. and the default sentence is fixed as 3 months simple imprisonment. 3. In appeal, by judgment dated 19.4.2010 in Crl.A.No.550/08, the Court of Addl.District & Sessions Judge, Fast Track-I, Thrissur confirmed the conviction, but the sentence is modified as only simple imprisonment for 3 months. There is no order to pay the compensation. 4. The learned counsel for the revision petitioner submitted that the sentence of imprisonment may be set aside and the revision petitioner is ready to pay the cheque amount as compensation. Having regard to the facts and circumstances of 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. 5. The cheque in question is dated 30.5.2003 for an amount of Rs.1,20,000/- and as per the findings of the court below which approved by this Court, a sum of Rs.1,20,000/- which belonging to the complainant is with the revision Crl.R.P.No.1967 of 2010 : 4 : petitioner for the last seven years. It is also relevant to note that decision in Damodar.S.Prabhu v. Sayed Babalal.H [J.T. 2010 (4) SC 457] the Supreme court has held that in the case of dishonour of cheques, the compensatory aspect of the remedy shall be given preference than the punitive aspect. Having regard to the above facts and circumstances and the above settled decision, I am of the view that the sentence of imprisonment can be modified and the revision petitioner can be sentenced to pay a fine amount with slight modification of the cheque amount and for paying the amount some time can be granted. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner under Sec.138 of the N.I.Act as ordered by the court below. Accordingly, in modification of the sentence of imprisonment ordered by the court below, the revision petitioner is sentenced to undergo simple imprisonment for a day ie; till the rising of the court and he is directed to pay Crl.R.P.No.1967 of 2010 : 5 : a sum of Rs.1,25,000/- to the complainant as compensation under Sec.357(3) of Cr.P.C. and in default he is directed to under simple imprisonment for 6 months. The revision petitioner is free to pay the compensation amount either directly to the complainant or by remitting the same in the trial court subjected to the satisfaction of the learned Magistrate. Accordingly, the revision petitioner is directed to appear before the trial court on 4th October, 2010 to pay the compensation amount as directed by this court. In case any failure on the part of the revision petitioner in appearing before the court below as directed above and 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