IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 17TH DECEMBER 2010 / 26TH AGRAHAYANA 1932 Crl.Rev.Pet.No. 418 of 2005(B) ------------------------------ CRA.62/2004 of SESSIONS COURT, THODUPUZHA ST.1034/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KATTAPPANA .................... REVN. PETITIONER: APPELLANT/ACCUSED: --------------------------------------- SASIDHARAN, AGED 45 YEARS, S/O. GOPALAN, CHOZHIKKARA HOUSE, PUTTADY KARA, ANAKKARA VILLAGE, IDUKKI DISTRICT. BY ADV. SRI.TOMY THOMAS (KUZHUPPILLY) RESPONDENT(S): RESPONDENT/COMPLAINANT: -------------------------------------- 1. VANDAMEDU DEVELOPMENT SOCIETY, VANDAMEDU P.O., IDUKKI, REP. BY AUGUSTINE NICHOLAS 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. SRI.T.V.GEORGE FOR R1 SMT.LINDA GEORGE FOR R1 R2 BY PUBLIC PROSECUTOR SHRI. MUHAMMED PUZHAKKARA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/12/2010, ALONG WITH CRRP NO. 1743 OF 2005 THE COURT ON 17/12/2010 PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.2443 OF 2005 IN CRL.R.P.NO. 418 OF 2005 DISMISSED 17.12.2010 SD/- M.L.JOSEPH FRANCIS, JUDGE /TRUE COPY/ M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.Nos. 418 & 1743 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of December, 2010 O R D E R Crl.R.P.No. 418 of 2005 is filed by the accused in S.T.No. 1034 of 1998 on the file of the Judicial First Class Magistrate, Kattappana challenging the conviction and sentence of the accused under Section 138 of the N.I. Act. The cheque amount was Rs.30,210/- In the trial court the accused was sentenced to undergo S.I. for three months and to pay a compensation of rs.30,210/- to the complainant under Section 357(3) Cr.P.C., in default to undergo S.I. for one month. The appeal filed by the accused as Crl.A.No.63 of 2004 before the Sessions Court, Thodupuzha was allowed in part and the sentence was reduced to imprisonment till rising of Court and a fine of Rs.5,000/-, in default to undergo S.I. for one month. The order to pay compensation to the complainant is sustained with a Crl.R.P.Nos. 418 & 1743 of 2005 2 modification that in default of payment of compensation, the accused shall undergo S.I. for two months. Against that judgment the accused filed Crl.R.P.No. 418 of 2005 and the complainant filed Crl.R.P.No. 1743 of 2005 for enhancement of punishment. 2. Heard learned counsel for the revision petitioner, learned counsel for the complainant and the learned Public Prosecutor. 3. The learned counsel appearing for the revision petitioner reiterated the same contentions raised before the trial Court and the appellate court. Learned counsel for the complainant supported the judgment of the court below. 4. The courts below have concurrently held that the cheque in question was drawn by the petitioner in favour of the complainant, that the complainant had validly complied with clauses (a) and (b) of the proviso to Section 138 of the N.I. Act and that the Revision petitioner/accused failed to make the payment within 15 days of receipt of the statutory notice. Both the courts Crl.R.P.Nos. 418 & 1743 of 2005 3 have considered and rejected the defence set up by the revision petitioner while entering the conviction. The said conviction has been recorded after a careful evaluation of the oral and documentary evidence. I do not find any error, illegality or impropriety in the conviction so recorded concurrently by the courts below and the same is hereby confirmed. 5. In the decision reported in Damodar S. Prabhu v. Sayed Babalal H (2010 (2) KHC 428 (SC)), it was held that in a case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. Considering the facts and circumstances of the case, I am of the view that sentencing the accused to pay a fine of Rs.32,000/- would meet the ends of justice. The said fine shall be paid as compensation under Section 357(1) of Cr.P.C. The revision petitioner is permitted either to deposit the said fine amount before the Court below or directly pay the compensation to the complainant within three months from Crl.R.P.Nos. 418 & 1743 of 2005 4 today and to produce a memo to that effect before the Trial Court in case of direct payment. If he fails to deposit or pay the said amount within the aforesaid period, he shall suffer simple imprisonment for three months by way of default sentence. The amount if any deposited in the trial court by the accused can be given credit to. 6. Accordingly this Revision Petition is disposed of confirming the conviction entered and by modifying the sentence imposed on the revision petitioner. (M.L. JOSEPH FRANCIS) Judge tm