IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 7TH SEPTEMBER 2010 / 16TH BHADRA 1932 Crl.Rev.Pet.No. 2274 of 2010() --------------------------------------------- CRA.365/2008 of I ADDL. SESSIONS JUDGE-I, PALAKKAD ST.219/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT, CHITTUR .................... REVN. PETITIONER(S): PETITIONER/APPELLANT/ACCUSED --------------------------------------------------------------------------------------- SASI,S/O.GOPALAN,MALABAR TYRE WORKS, COURT ROAD, NEAR POLICE STATION,CHITTUR. BY ADV. SRI.P.K.MOHANAN(PALAKKAD) RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE --------------------------------------------------------------------------------------- 1. G.VINEESH KUMAR,S/O.GANGADHARAN, PANNIPERUNTHALA,THEKKEDESOM,CHITTUR,PALAKKAD. 2. STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R1 BY ADV. SRI.A.ANILKUMAR, SMT.R.RANJINI, SRI.R.JAYAKRISHNAN (CHITTUR). R2 BY PUBLIC PROSECUTOR SRI.B.JAYASURYA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: kl. V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2274 of 2010 ------------------------------- Dated this the 7th 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 borrowed a sum of Rs.70,000/- from the complainant and towards the discharge of the debt due to the complainant, he issued a cheque dated 15.12.2006 for a sum of Rs.70,000/-, 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 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 said allegation, the complainant approached the Judl. First Class Magistrate Court-, Chittoor, by filing a formal complaint, 2 Crl. R.P.No.2274 of 2010 upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.219/07. During the trial of the case, PW1, the complainant himself was examined from the side of the complainant and Exts.P1 to P4 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 3 months and to pay a compensation of Rs.75,000/- u/s.357(3) of Cr.P.C. and the default sentence was fixed as 2 months simple imprisonment. 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 11.6.2009 in 3 Crl. R.P.No.2274 of 2010 Crl.A.365/08, the Court of Sessions Judge-Palakkad Division, allowed the appeal only in part and while confirming the conviction, sentence of imprisonment is set aside and sentenced the revision petitioner to pay a fine of Rs.72,000/- and the default sentence was fixed as 2 months simple imprisonment. It is also ordered that on realisation of the fine amount, a sum of Rs.70,000/- shall be paid to the complainant as compensation u/s.357(1) 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 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 4 Crl. R.P.No.2274 of 2010 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 order of conviction recorded by the courts below, the counsel for the revision petitioner submitted that, some breathing time may be granted to pay the fine amount. But the counsel for the complainant/respondent stoutly opposed the above submission stating that though the lower appellate court judgment is dated 11.6.2009, so far no amount is paid by the revision petitioner. 7. On a careful consideration of the facts and circumstances involved in the case and as per the records and findings of the court below, which approved by this court, it can be seen that the cheque in question is dated 15.12.2006 and thus for the last 4 years, a sum of Rs.70,000/-, which belonged to the complainant, is in the hands of the revision petitioner. It is also relevant to note that, though the trial court has imposed a substantive sentence of 3 months simple imprisonment, the lower appellate court has already set aside the above sentence of imprisonment and the sentence is confined to fine only and 5 Crl. R.P.No.2274 of 2010 thus the fine amount is fixed as Rs.72,000/-. But even after the lower appellate court judgment, no amount is paid. The apex court in a recent decision reported in Damodar S.Prabhu V. Sayed Babalal H. (JT 2010(4) 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. Thus according to me, the revision petitioner can be granted one month time to pay the fine amount but subject to slight enhancement in the amount. 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 sentence of imprisonment as awarded by the lower appellate court is confirmed but the fine amount is enhanced to the tune of Rs.74,000/- and the revision petitioner is granted one month time to deposit the fine amount and the default sentence of 2 months ordered by the lower appellate court will attract only in case, the revision petitioner failed to pay 6 Crl. R.P.No.2274 of 2010 the fine amount of Rs.74,000/- on or before 7.10.2010. Accordingly, the revision petitioner is directed to deposit a sum of Rs.74,000/-, being the fine amount on or before 7.10.2010. In case any failure on the part of the revision petitioner in depositing fine amount, within the above time limit, the trial court is free to take coercive steps to secure the presence of the revision petitioner and for the realisation of the fine amount. On realisation of the fine amount, a sum of Rs.72,000/- shall be paid to the complainant as compensation u/s.357(1)(b) of Cr.P.C. Coercive steps if any, pending against the revision petitioner shall be deferred till 7.10.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/