IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 23RD MARCH 2009 / 2ND CHAITHRA 1931 Crl.Rev.Pet.No. 3723 of 2006() ------------------------------ CRA.582/2005 of SESSIONS COURT, ERNAKULAM CC.998/2001 of JUDL.MAGISTRATE OF FIRST CLASS, PERUMBAVOOR .................... REVISION PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------------------------------------------- STEEVI.K., S/O.OUSEPH, KALLOOKKADAN HOUSE, KALADY P.O., KALADY. BY ADV. MR.RAJESH VIJAYAN RESPONDENT(S): RESPONDENT/COMPLAINANT: ------------------------------------------------------------------------- 1. SAJEEV N.V., S/O.VELAYUDHAN, NADUKKUDY HOUSE, MANICKAMANGALAM P.O., KALADY. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT. PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss ORDER ON CRL.M.A.NO.10683/2006 IN CRRP.NO.3723/2006 DISMISSED 23/03/2009 SD/- S.S.SATHEESACHANDRAN,JUDGE /TRUE COPY/ P.S.TO JUDGE Kss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.3723 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 23rd March, 2009 ORDER The revision is directed against the concurrent verdict of guilty against the accused for the offence punishable under Section 138 of the Negotiable Instruments Act (for short 'the Act'). Negativing the plea of not guilty of the accused, the learned Magistrate, after trial, found him guilty of the offence, and he was thereupon convicted and sentenced to undergo simple imprisonment for three months and to pay a fine of Rs.1000/-. He was also directed to pay compensation of Rs.1,25,000/- to the complainant under Section 357(3) of the Cr.P.C. with default term of simple imprisonment for 45 days. In the appeal preferred by the accused, the learned Sessions Judge upholding the conviction modified the sentence reducing the imprisonment to 15 days and enhancing the compensation to Rs.1,75,000/- with default term of simple imprisonment for three months. Fine of Rs.1,000/- imposed was also set aside. Questioning the legality, propriety and correctness of the sentence as indicated above, the accused has preferred this revision. 2. The case of the complainant is that towards discharge of a debt, the accused issued Ext.P1 cheque for a sum of Rs.1,25,000/- Crl.R.P.No.3723/06 - 2 - promising its encashment on presentation in due course. The cheque presented, however, was dishonoured due to insufficiency of funds in the account of the accused. Statutory notice issued intimating dishonour and demanding the sum covered by the cheque was acknowledged, but no reply was sent nor any payment made. The complainant, thereupon, launched the prosecution against the accused for the offence under Section 138 of the Act. 3. The accused pleaded not guilty when particulars of the offence were made known. The complainant examined himself as P.W.1 and got marked Exts.P1 to P5 to prove his case. The accused reiterated his plea of innocence when questioned under Section 313 Cr.P.C. No defence evidence was adduced. 4. I heard the learned counsel for the revision petitioner- accused. The accused had set up a defence case that the cheque was issued as a security and the transaction was under an agreement entered between the parties. The agreement was not produced and the prosecution was initiated on the basis of security covered by Ext.P1 cheque, is the submission of the learned counsel. Perusing the records of the case, I find there is no merit in the submission of the counsel. Though the accused had set up a defence that the cheque Crl.R.P.No.3723/06 - 3 - was issued only as a security and whatever transaction between the complainant and the accused was under a written agreement, leave alone any evidence not even any worthmentioning circumstance was brought in to substantiate that case. The learned Magistrate who had the opportunity to watch the demeanour and deportment of the complainant while he was examined, found his testimony reliable, convincing and trustworthy. It is also pertinent to take note that the accused who had been intimated of the dishonour of the cheque with demand for payment to avoid prosecution, after acknowledging the notice did not even send a reply. The defence canvassed by the accused during trial has to be viewed in the backdrop that no reply was sent to the notice of dishonour given by the complainant. The complainant having established his case by cogent and convincing evidence, there was no escape from the conclusion that the accused was guilty of the offence imputed. His conviction for the offence passed by the learned Magistrate, and upheld in appeal by the learned Sessions Judge, in the proved facts and circumstances of the case, deserves only to be confirmed. I do so. 5. Now with regard to the sentence imposed against the accused, the learned counsel for the accused raised a grievance that Crl.R.P.No.3723/06 - 4 - in the appeal preferred by the accused against the conviction and sentence, the Sessions Court had enhanced the sum payable as compensation, modifying the sentence imposed by the trial court. At any rate, the compensation of Rs.1,75,000/- awarded by the learned Sessions Judge for a cheque of Rs.1,25,000/-, the dishonour of the cheque, which had let the prosecution of the accused, it is submitted, is highly excessive and unreasonable. The cheque involved in the present case was issued as early in 2001 and no doubt, the time lag taken for culmination of the prosecution on its dishonour has to be taken note of in passing appropriate sentence with regard to the payment of compensation by the accused. Having regard to the totality of the facts and circumstances involved in the case, upholding the conviction passed against the accused, sentence is modified directing him to undergo imprisonment till the rising of the court and to pay compensation of Rs.1,50,000/- under Section 357(3) of the Cr.P.C., within two months from the date of this order. If compensation as fixed above is not paid within the stipulated period, the accused shall undergo simple imprisonment for two months. Compensation, if realised, shall be paid to the complainant. The accused shall appear and his sureties shall produce him on 8.6.2009 Crl.R.P.No.3723/06 - 5 - before the Judicial First Class Magistrate Court, Perumbavoor, and the learned Magistrate shall execute the sentence as directed. The revision is partly allowed. srd S.S. SATHEESACHANDRAN, JUDGE