IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 26TH JULY 2010 / 4TH SRAVANA 1932 Crl.Rev.Pet.No. 2225 of 2010() ------------------------------------------------ CRA.22/2010 of THIRD ADDL.SESSIONS COURT, THODUPUZHA ST.614/2008 of CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA ................................................... REVN. PETITIONER: ------------------------------- SAJI.M.S., S/O.SIDHIQUE, MARAVETTICKAL HOUSE, THADIYAMPADU P.O., VAZHATHOPE KARA. BY ADV. SRI.T.J.MICHAEL RESPONDENT(S): --------------------------- 1. MATHEW, S/O.MICHAEL, PULIYANMAKKAL HOUSE, MANAPPADI, ELAPPALLY VILLAGE, MOOLAMATTOM -685 589. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR. VENUGOPAL M.R. FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2225 of 2010 ------------------------------------------------- Dated this the 26th day of July, 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 against him 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 05.09.2008 for a sum of Rs. 2,10,000/-(Rupees Two lakhs ten thousand only) which when presented for encashment dishonoured as there was “no sufficient funds” 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 same allegation, the Crl. R.P.No.2225/2010 2 complainant approached the Chief Judicial Magistrate Court-Muttam, Thodupuzha by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.614/08. During the trial of the case, PW1 was examined from the side of the complainant and Exts.P1 to P7 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 the 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/appellant to Crl. R.P.No.2225/2010 3 undergo simple imprisonment for a period of 3 months and also ordered to pay a fine of Rs.2,50,000/- and in default, the revision petitioner is directed to undergo rigorous imprisonment for a period of 3 months. It is also ordered that on realisation of fine amount, the same shall be paid to the complainant as compensation u/s.357(1) of Cr.P.C. 3. Aggrieved by the above order of conviction and sentence, the revision petitioner had approached the court below by filing an appeal, but by judgment dated 28.04.2010 in Crl.R.P. No.22/2010, of the Court of Third Addl. Sessions Judge (Adhoc-I) Thodupuzha, allowed the appeal only in part and thus while confirming the conviction, the sentence imposed against the revision petitioner u/s.138 of Negotiable Instruments Act, is modified and reduced to imprisonment till raising of the court. Accordingly, the revision petitioner is directed to pay a compensation u/s.357(3) of Cr.P.C to the Crl. R.P.No.2225/2010 4 complainant and the fine amount fixed by the trial court i.e, Rs.2,50,000/- is converted into compensation. The default sentence is fixed as 3 months simple imprisonment. 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 courts below against the revision petitioner u/s.138 of Negotiable Instruments Act, is Crl. R.P.No.2225/2010 5 approved. 6. The counsel for the revision petitioner submitted that the sentence imposed by the courts below is highly exorbitant and unreasonable. It is also submitted that some breathing time may be granted to the revision petitioner to pay the amount. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered positively. 7. Going by the records and the findings of the court below, which approved by this court, it can be seen that an amount of Rs.2,10,000/- which belonged to the complainant is with the revision petitioner for the last 2 years. 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 Crl. R.P.No.2225/2010 6 aspects. Considering the above facts and legal position, I am of the view that, while maintaining the sentence of imprisonment ordered against the revision petitioner, the revision petitioner can be ordered to pay a compensation of Rs.2,60,000/-(Rupees Two lakhs sixty thousand only) to the complainant u/s.357(3) of Cr.P.C, within 3 months from today. 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 trial court as well as the lower appellate court. Accordingly, the sentence of imprisonment till rising of the court, as ordered by the appellate court is confirmed and the revision petitioner is also directed to pay a sum of Rs.2,60,000/- (Rupees Two lakhs sixty thousand only) as compensation to the complainant u/s.357(3) of Cr.P.C, within 3 months from today and in case of failure in paying the compensation amount Crl. R.P.No.2225/2010 7 within the stipulated time, he is directed to undergo simple imprisonment for a period of 4 months. Accordingly the revision petitioner is directed to appear before the trial court on 26.10.2010 to receive the sentence and to pay the compensation. Failure in the case, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence awarded against the revision petitioner. Criminal revision petition is disposed of accordingly. Sd/- V.K.MOHANAN, Judge. ss/ //True copy// P.A to Judge