IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 19TH FEBRUARY 2008 / 30TH MAGHA 1929 Crl.Rev.Pet.No. 231 of 2000() ----------------------------- (S.T.NO. 760/1992 OF THE JFCM-I, ETTUMANOOR.) REVN. PETITIONER: ------------------ T.K.SUKUMARAN, MANAGER, TIPSY HOTEL, ERATTUPETTA. BY ADV. SRI.DINESH R.SHENOY SRI.GEORGE KUTTY MATHEW RESPONDENTS: ------------- 1. P.K.KUTTAPPAN, PADINJAREMALAYIL, SREEKANDAMANGALAM BHAGOM, PADINJATUM BHAGAM KARA, ATHIRAMPUZHA VILLAGE. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR. R1 BY ADV. SRI.SARVOTHAMANAN R2 BY PUBLIC PROSECUTOR SRI C.M. KAMMAPPU. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.1357/2000 IN CRL.R.P.231/2000 DISMISSED. 19-2-2008. SD/- V.K.MOHANAN, JUDGE. //TRUE COPY// V.K.MOHANAN, J. ---------------------------------------------- Crl.R.P.No.231 of 2000 ---------------------------------------------- Dated, 19th February, 2008. ORDER The petitioner herein is the accused in S.T.No.760/1992, which is a case instituted upon a private complaint for the offence punishable under section 138 of the Negotiable Instruments Act, stands convicted and sentenced to undergo simple imprisonment for 3 months and to pay a fine of Rs.20,000/- and in default of payment of fine, further directed to undergo simple imprisonment for 3 months and he was also directed to pay half of the fine amount, i.e.Rs.10,000/- to the complainant. Challenging the above order of conviction and sentence, the accused preferred Crl.Appeal No.88/1996 before the Additional Sessions Court, Kottayam and by the judgment dated 20-1-2000, though the Sessions court had modified the sentence with respect to the fine, the substantive sentence was not interfered with, and the finding arrived on by the trial court and the conviction were confirmed. It is the above concurrent finding of both the trial court as well as the lower appellate court CRL.R.P.231/2000 -: 2 :- is challenged in this Crl.R.P. 2. According to the complaint, on 30-7-91, the revision petitioner/accused issued two cheques of Kottayam District Co-Operative Bank of Erattupetta Branch for an amount of Rs.20,000/- which was due to the complainant on account of purchase of fish by the accused from the complainant. According to the complainant, when he presented the cheques for encashment on 5-10-91 before the south Indian Bank, Athirampuzha, the same were returned with an endorsement “insufficiency of funds” with a memo of the bank dated 11-10-1991. Thereafter the complainant caused to send a lawyer notice dated 16-10-91 demanding payment of the amount and the accused/revision petitioner accepted the same on 19-10-91. According to the complainant, even after statutory demand, the amount was not paid and thus according to the complainant, the accused has committed the offence punishable under section 138 of the N.I.Act. and based upon such allegation, the trial court took cognizance of the complaint dated 27-11-91 and instituted S.T.No.760/92. CRL.R.P.231/2000 -: 3 :- During the course of trial, the complainant was examined as PW-1 and Exts.P1 to P5 were marked from the side of the complainant. No evidence, either oral or documentary was adduced from the side of the defence. The accused took a stand of total denial during his 313 examination. After appreciation of the evidence and materials on record, the trial court found that the accused petitioner is guilty of the offence under section 138 of the N.I.Act and finally he is sentenced to undergo simple imprisonment for a period of 3 months and also awarded a fine of Rs.20,000/-, an amount equal to twice of the cheque amount, and in default of payment of fine, the accused petitioner is further directed to undergo simple imprisonment for a period of three months. He is also directed to pay half of the fine amount i.e. Rs.10,000/- to the complainant. 3. Challenging the correctness and legality of the trial court judgment, the petitioner had preferred Crl.A.88/96 before the Addl.Sessions Court, Kottayam. By judgment dated 20-1-2000, the Addl.Sessions Judge dismissed the CRL.R.P.231/2000 -: 4 :- appeal confirming the conviction but subject to the modification in the matter of fine amount. The above judgment is challenged in this Court in this Crl.R.P. 4. I have heard the learned counsel appearing for the revision petitioner; the counsel appearing for the Ist respondent and also the learned Public Prosecutor appearing for the 2nd respondent. 5. It is submitted on behalf of the revision petitioner/accused that the complainant could not establish the transaction or any passing of consideration. It is also submitted that no money was due from the accused to the complainant and no fish had been purchased by him as alleged, therefore, according to him, there was no burden on the part of the revision petitioner to rebut the presumption. Thus according to the counsel for the revision petitioner, no offence under section 138 of N.I.Act is made out and therefore the judgments of both the courts below are liable to the set aside. It is also submitted that , at any rate, the sentence awarded is highly excessive and exorbitant which requires CRL.R.P.231/2000 -: 5 :- reconsideration. 6. On the other hand, the counsel appearing for the Ist respondent/complainant submitted that the complainant has proved the case beyond any doubt and the oral testimony of PW-1 and the documentary evidence adduced on the side of the prosecution, i.e. Exts.P1 to P5 are sufficient to hold that the accused is guilty. It was also pointed out that the accused had issued the cheques bearing signature of the accused and therefore, the presumption is in favour of the complainant and against the accused. Counsel pointed out that on the side of the defence, no evidence was adduced and there was no attempt to rebut the presumption against the accused. Thus according to the the counsel for the Ist respondent, the judgments of both the courts below are absolutely legal and correct and there is no impropriety which warrants interference of this Court in exercise of the revisional jurisdiction of this Court. 7. I have gone through the judgments of the courts below and also the evidence and materials on record. During the CRL.R.P.231/2000 -: 6 :- deposition of PW-1, he had deposed in tune with the averments contained in the complaint and proved the case. According to both the trial court as well as the lower appellate court, the case against the accused has been proved beyond any doubt. The accused/revision petitioner is guilty of the offence under section 138 of the N.I.Act. No case is made out to interfere with the concurrent finding of the courts below. In the light of the evidence and materials on record, I am of the view that the complainant has established his case against the revision petitioner/accused and the revision petitioner/accused has miserably failed to rebut the presumption and therefore, it has to be held that the revision petitioner/accused is guilty of the offence punishable under section 138 of the N.I.Act. 8. The counsel for the revision petitioner submitted that in another case between the same parties, this Court by judgment dated 21-11-2007 in Crl.R.P.No.232/2000 a lenient view was taken with respect to the sentence and the counsel further submitted that a lenient approach may be taken in CRL.R.P.231/2000 -: 7 :- the present case also. 9. On the other hand, the counsel for the Ist respondent submitted that the amount was due from the revision petitioner/accused from 30-7-91 and so far, the said amount is not returned and the same is being enjoyed by the revision petitioner. Further, the counsel for the Ist respondent submitted that the complainant is entitled to reasonable interest on the principal amount due under the cheque. I have heard and considered the question of sentence and the rival pleadings of the counsel. 10. Both the courts below have found that the amount shown in Ext.P1 cheque is due from the revision petitioner/accused. Therefore the amount covered by Ext.P1 cheque is legitimately due to the complainant at least from 30-7-1991. By the judgment of the lower appellate court, the amount of fine is reduced to the tune of Rs.5000/- only on the basis of pecuniary limitation of the trial court especially in the light of section 29 of Cr.P.C. But subsequently the Supreme Court has held that even though there is such pecuniary CRL.R.P.231/2000 -: 8 :- limitation, the affected party can be compensated by awarding reasonable compensation in exercise of the powers conferred on the court under section 357(3) of Cr.P.C. In the light of the above legal background and the particular factual situation of the case, I am of the view that the sentence can be modified to imprisonment till the rising of the court and instead of fine, the revision petitioner/accused can be directed to pay a compensation of Rs.20,000/- to the complainant/Ist respondent herein, by invoking section 357(3) of Cr.P.C. 11. In the result, the conviction is confirmed and the sentence is modified to imprisonment till rising of the court and the revision petitioner/accused is directed to pay a sum of Rs.20,000/- as compensation to the complainant/Ist respondent and, in default, he is directed to undergo simple imprisonment for 3 months. The revision petitioner is granted two months time to remit the amount of compensation and he is directed to appear before the Judicial First Class Magistrate Court, Ettumanoor on 18-4-2008 to receive the sentence. If the revision petitioner/accused is not complied with the above CRL.R.P.231/2000 -: 9 :- direction, the trial court is at liberty to proceed against the accused/revision petitioner in accordance with law. The Crl.R.P.is disposed of as above. V.K.MOHANAN, JUDGE. kvm/- CRL.R.P.231/2000 -: 10 :- V.K.MOHANAN, J. Crl.R.P. No.231 of 2000 Order Dated:19-2-2008