IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 25TH JUNE 2010 / 4TH ASHADHA 1932 Crl.Rev.Pet.No. 1613 of 2010() ------------------------------ CRA.663/2007 of ADDL. SESSIONS COURT-II, TRIVANDRUM CC.478/2005 of THE JUDICIAL FIRST CLASS MAGISTRATE COURT-V, NEYYATTINKARA. .................... REVN. PETITIONER(S): ------------------------------- RAJAN M., S/O.MANIYAN, MALEKONAM PUTHEN VEEDU, PERUMBAZHUTHOOR P.O., NOW RESIDING AT TEJAS, HOUSE NO.KJP VII/265, NEAR ANANTH BHAVAN, KANJIRAMKULAM P.O. BY ADV. SRI.T.A.UNNIKRISHNAN RESPONDENT(S)/RESPONDENTS/COMPLAINANT: ------------------------------------------------------------------------ 1. N.VARDHANAN, S/O.NARAYANA PANICKER, LEKA SADANAM, MALAVILA, PARASUVAIKKAL P.O., NEYYATTINKARA. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADVS. SRI.G.SUDHEER FOR R1 SRI.VENUGOPAL M.R., PUBLIC PROSECUTOR FOR R2. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ami/ V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1613 of 2010 ------------------------------- Dated this the 25th day of June, 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, towards the discharge of a debt due to the complainant, issued a cheque dated 21.12.2004 for a sum of Rs.50,000/-, 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 initially approached the Judicial First Class Magistrate Court-II, Neyyattinkara, by filing a formal complaint, Crl. R.P.No.1613 of 2010 2 upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.598/05. Thereafter the case was transferred to the Court of Judicial First Class Magistrate-V, Neyyattinkara, where it re-numbered as C.C.No.478/05 and during the course of the trial, PW1 was examined from the side of the complainant and Exts.P1 to P5 were marked. No evidence either oral or documentary was 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 held 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 4 months and to pay a sum of Rs.52,000/- to PW1 as Crl. R.P.No.1613 of 2010 3 compensation u/s.357(3) of Cr.P.C. The default sentence is fixed as 2 months imprisonment. 3. In appeal, at the instance of the revision petitioner/ accused, by judgment dated 29.7.2009 in Crl.A.663/07, the appeal is allowed in part only, by the Court of Addl. Sessions Judge-II, Thiruvananthapuram, confirming the conviction and the sentence of simple imprisonment is reduced to till rising of the court and while enhancing the compensation amount to the tune of Rs.55,000/- and the default sentence is also enhanced and fixed as 4 months simple imprisonment. There was also a direction to the revision petitioner to appear before the lower court on 30.9.2009 to receive the modified sentence. 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 Crl. R.P.No.1613 of 2010 4 petitioner during the trial and appeal, submitted that the complainant has not established the transaction and also the execution and issuance of the cheque. The counsel for the revision petitioner further submitted that the courts below has committed wrong in convicting the revision petitioner. 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 approved. 6. The learned counsel for the revision petitioner submitted that, a lenient view may be taken in the matter of sentence and some breathing time may be granted to the revision petitioner to pay the compensation amount. I am of the view that the said submission can be considered favourably but subject to other relevant materials and circumstances involved in the case. 7. The apex court in a recent decision reported in Damodar S.Prabhu V. Sayed Babalal H. (JT 2010(4) SC 457) has held Crl. R.P.No.1613 of 2010 5 that, in the case of dishonour of cheques, the compensatory aspect of the remedy should be given priority over the punitive aspects. In the present case, the cheque in question is dated 21.12.2004, for an amount of Rs.50,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.50,000/- is in the hands of the revision petitioner for the last 5 ½ years. Considering the above facts and legal position, I am of the view that, while granting time to the revision petitioner for paying the compensation amount, the amount can be modified slightly, though the courts below have made some increase in the cheque amount and the revision petitioner can be granted 3 months time to pay the compensation 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 is maintained as it has been modified by the lower appellate court and he is directed Crl. R.P.No.1613 of 2010 6 to pay a sum of Rs.57,500/- to the complainant as compensation u/s.357(3) of Cr.P.C. and in case of default in paying the compensation, the revision petitioner is directed to undergo simple imprisonment for 6 months. Accordingly, the revision petitioner is directed to appear before the trial court on 27.9.2010 to pay the compensation amount as directed by this court. In case any failure on the part of the revision petitioner in appearing before the court below as directed above and in making the deposit of compensation amount, 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 and for realisation of the compensation amount. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/