IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 27TH SEPTEMBER 2010 / 5TH ASWINA 1932 Crl.Rev.Pet.No. 2818 of 2010 ---------------------------------------- [CRL.A.NO.240/2009 OF SESSIONS COURT, KASARAGOD, CC.NO.110/2009 OF THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT-II (ADDL.MUNSIFF), KASARAGOD] .................... REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------------- S.MOHAMMED KUNHI, AGED 44 YEARS, S/O.ABDUL KHADER, RESIDING AT JAMBO HOUSE, KOTA ROAD, POVVAL, P.O.MULIYAR, KASARAGOD TALUK, KASARAGOD DISTRICT. BY ADV. SRI.T.MADHU. RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: ----------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. RAMAKRISHNA.C.H, PROPRIETOR, AYYAPPA BORE WELLS, ROOM NO.XII 3, 2ND FLOOR, NEW BUS STAND COMPLEX, KASARAGOD POST AND VILLAGE, KASARAGOD TALUK, KASARAGOD DISTRICT. R1 BY PUBLIC PROSECUTOR SMT. SUMANGALA.P.N. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/09/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. V.K.MOHANAN, J. ------------------------------------------ Crl.R.P. No. 2818 of 2010 ---------------------------------------- Dated the 27th Day of September, 2010 ORDER The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the revision petitioner as he is aggrieved by the conviction and sentence imposed against him as per the impugned judgment. 2. The case of the complainant is that the accused borrowed an amount of Rs.70,000/- from the complainant and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 21.5.2008 which when presented for encashment, dishonoured as there was no sufficient fund in the account maintained by the accused and the revision petitioner/accused miserably failed to repay the cheque amount in spite of a formal demand notice caused to issue by him. With the said allegation, the complainant initially approached the court of Chief Judicial Magistrate, Kasaragod wherein the case was numbered as C.C.No.56/2008 and subsequently, it was made over to the CRL.R.P 2818/10 -:2:- court of Judicial First Class Magistrate-II, (Addl.Munsiff), Kasaragode and the case was refiled as C.C.No.110/2009. During the course of trial, the complainant himself mounted to the box and adduced oral evidence as PW1. He has also produced Exts.P1 to P5 as documentary evidence. From the side of the defence, no evidence, either oral or documentary was produced. After evaluation of the evidence and the materials on record, the trial court has found that Ext.P1 cheque was issued towards the discharge of a legally enforceable debt that due to the complainant and accordingly, the trial court held that the complainant has succeeded in establishing the allegation against the revision petitioner-accused and found that the revision petitioner-accused is guilty. Consequently, the accused is convicted under section 138 of the N.I.Act. On such conviction, the trial court sentenced the revision petitioner-accused to undergo simple imprisonment for a period of ten days months and to pay compensation of Rs.70,000/- to the complainant under section 357(3) Cr.P.C. The default sentence is fixed as simple imprisonment for a CRL.R.P 2818/10 -:3:- period of two months simple imprisonment. 3. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 2.9.2010, in Crl.A.No.240/2009, the court of Sessions Judge, Kasaragod dismissed the appeal confirming the conviction and sentence. It is the above judgments of the trial court as well as the lower appellate court challenged in this Crl.R.P. 4. Reiterating the contention taken by the defence during the trial and appellate stages, the learned counsel submitted that the complainant has not established the transaction, execution and issuance of the cheque and therefore, the courts below are absolutely wrong in convicting the revision petitioner-accused imposing sentence against him. The trial court as well as the lower appellate court has concurrently found in favour of the complainant and against the revision petitioner-accused. Though the revision petitioner is heard elaborately, nothing is brought out to take a different view to interfere with the concurrent findings of the courts below. All the CRL.R.P 2818/10 -:4:- contentions are based upon the facts and evidence on record which were elaborately considered by the courts below. Therefore, I find no reason to interfere with such concurrent finding of the courts below and accordingly, the conviction recorded by the courts below is confirmed. 5. As this court is not inclined to interfere with the conviction, the counsel submitted that the sentence of imprisonment ordered by the courts below is unreasonable and exorbitant and the same is liable to be set aside and also submitted that a breathing time may be granted to the revision petitioner to pay the compensation amount. 6. The cheque in question is dated 21.5.2008, that too for an amount of Rs.70,000/-. Thus as per the records and finding of the courts below, which upheld by this court, a sum of Rs.70,000/- is with the revision petitioner for the last two years. The Apex Court, in its recent decision in Damodar S.Prabhu v. Sayed Babalal H (J.T.2010 (4) SC 457), has held that in a case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. Therefore, CRL.R.P 2818/10 -:5:- according to me, in the light of the above legal position, the sentence of imprisonment ordered by the courts below can be modified and while granting some time to the the revision petitioner to pay the compensation, the amount can be enhanced slightly. In the result, this Crl.R.P is disposed of confirming the conviction recorded by the courts below for the offence under section 138 of the N.I.Act and the sentence of imprisonment ordered by the courts below is modified and reduced and he is sentenced to undergo simple imprisonment till the rising of the court and also directed to pay a compensation of Rs.75,000/- to the complainant under section 357(3) of Cr.P.C within three months from today. On failure to pay the compensation within the time limit, he is directed to undergo simple imprisonment for a period of two months. Accordingly the revision petitioner is directed to appear before the trial court on 27th December, 2010 to receive the sentence and to pay the compensation amount. If there is any default on the part of the revision petitioner in appearing before the CRL.R.P 2818/10 -:6:- trial court as directed above, the trial court is free to take coercive steps against the revision petitioner to secure his presence and to execute the sentence and for realisation of the amount. Coercive steps, if any, pending against the revision petitioner shall be deferred till 27.12.2010 This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/-