IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 13TH SEPTEMBER 2010 / 22ND BHADRA 1932 Crl.Rev.Pet.No. 1312 of 2008(D) ------------------------------------- (CRA.5/2007 of SESSIONS COURT, KOZHIKOE ST.1769/2005 of JUDL.MAGISTRATE OF FIRST CLASS-I, THAMARASSERY) .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ----------------------------------------------------- P.RAVEENDRAN, S/O.APPUKUTTAN, PATTANNA VEEDU, FEROKE, KOZHIKODE. BY ADV. SRI.K.A.SALIL NARAYANAN RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE -------------------------------------------------------------------- 1. PADMAKUMAR, S/O.VELAYUDHAN NAIR, PROPRIETOR, AMRUTHA AUTO FINANCE AND CONSULTANTS CHUNGAM, THAMARASSERY. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY PUBLIC PROSECUTOR SRI.P.N.PURUSHOTHAMA KAIMAL SMT.V.SHYLAJA R2 BY PUBLIC PROSECUTOR SMT. P.P. SUMANGALA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SVS/ V.K.MOHANAN, J. - - - - - - - - - - - - - - - - - - - Crl. R.P.No.1312 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th 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, towards the discharge of a debt due to the complainant, issued a cheque dated 05.03.2005 for a sum of Rs.1,50,000/- (Rupees One lakh fifty thousand only), which when presented for encashment dishonoured 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 same allegation, the complainant approached the Judicial First Class Magistrate Court, Thamarassery by filing a formal complaint, upon which Crl. R.P.No.1312/2008 2 cognizance was taken u/s.138 of Negotiable Instruments Act. During the trial of the case, PW1 was examined from the side of the complainant and Exts. P1 to P6 were marked. 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 a period of 1 year and also directed him to pay an amount of Rs.1,50,000/- as compensation and the default sentence is fixed as 3 months simple imprisonment. 3. In appeal, at the instance of the revision petitioner/ Crl. R.P.No.1312/2008 3 accused, by judgment dated 07.01.2008 in Crl.A.No.05/07, the Court of Sessions, Kozhikode Division disposed the appeal confirming the conviction but subject to modifications with respect to the sentence. Accordingly, the sentence of imprisonment was set aside and the revision petitioner is sentenced to pay a fine of Rs.1,65,000/- and in default, the revision petitioner has to undergo simple imprisonment for 3 months. It is also ordered that on realisation of the fine amount, a sum of Rs.60,000/- shall be paid to the complainant as compensation u/s.357(1) (b) of Cr.P.C. 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 Crl. R.P.No.1312/2008 4 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 conviction recorded against the revision petitioner, the counsel for the revision petitioner submitted that, some breathing time may be granted to the revision petitioner to deposit the fine amount. 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 relevant materials and circumstances involved in the case. 7. The apex court in a recent decision reported in [Damodar S.Prabhu V. Sayed Babalal H. (JT 2010 (4) Crl. R.P.No.1312/2008 5 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. In the present case, the cheque in question is dated 05.03.2005, for an amount of Rs.1,50,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.1,50,000/- is in the hands of the revision petitioner for the last 5 years. Considering the above facts and legal position, I am of the view that, while granting some time to pay the fine, the amount 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. Accordingly, the order, setting aside the substantial sentence and the sentence of fine of the appellate court is confirmed but the fine amount is enhanced to the tune of Rs.1,75,000/- (Rupees One lakh seventy five thousand only) and the revision petitioner is Crl. R.P.No.1312/2008 6 directed to deposit the said amount within 2 months from today and in case of any default in depositing the amount within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for a period of 3 months. Accordingly, the revision petitioner is directed to deposit the fine amount in the trial court on or before 15.11.2010. Learned counsel for the revision petitioner submitted that the revision petitioner has already deposited a sum of Rs.15,000/-(Rupees Fifteen thousand only) in compliance of the order issued by the appellate court, while suspending the execution of sentence. If, that be so, and the said amount is retained in the trial court, the revision petitioner need to deposit the balance amount of Rs.1,60,000/- on or before 15.11.2010. In case of any failure in depositing the above amount on or before the date mentioned above, 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. If the Crl. R.P.No.1312/2008 7 amount is realized, a sum of Rs.1,70,000/- (Rupees One lakh seventy thousand only) shall be paid to the complainant as compensation u/s.357(1)(b) of Cr.P.C. The coercive steps if any pending against the revision petitioner shall be deferred till 15.11.2010. Criminal revision petition is disposed of accordingly. Sd/- V.K.MOHANAN, Judge. ss/. //True copy// P.A to Judge