IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 8TH OCTOBER 2010 / 16TH ASWINA 1932 Crl.Rev.Pet.No. 2959 of 2010() ------------------------------ CRA.655/2008 of SESSIONS COURT (ADHOC III), NORTH PARUR ST.5049/2003 of JUDL.MAGISTRATE OF FIRST CLASS - I, NORTH PARUR. .................... REVISION PETITIONER/APPELLANT/ACCUSED: ---------------------------------------------------------------------- BENDO, AGED 42 YEARS, S/O. THOMAS, MANAKKIL HOUSE, GOTHURUTH KARA, CHENNAMANGALAM VILLAGE, PARUR TALUK. BY ADVS. SRI.HARISANKAR V. MENON, SMT.MEERA V.MENON, SRI.MAHESH V.MENON. RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE: -------------------------------------------------------------------------------------------- 1. NOBERT, S/O. MATHAPPAN, VAZHAVELI HOUSE, VALLUVALLI KARA, KOONAMMAVU, PIN-683 518. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. V. TEKCHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. - - - - - - - - - - - - - - - - - Crl. R.P. No. 2959 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8 th day of October, 2010. J U D G M E N T 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.4,50,000/- (Rupees Four lakhs fifty thousand only) from the complainant and towards the discharge of the debt, he issued a cheque dated 05.05.2003 for a sum of Rs.4,50,000/-(Rupees Four lakhs fifty thousand only), which when presented for encashment was dishonoured on the ground that the “payment stopped” 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 Crl. R.P. No. 2959/2010 2 said allegation, the complainant approached the Court of Judicial Ist Class Magistrate, North Paravur by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.5049/2003. During the trial of the case PWs 1 and 2 were examined. Exts.P1 to P5 were marked. No evidence, either documentary or oral adduced on 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/appellant to undergo simple imprisonment for a period of three months and also directed to pay a fine of Rs.4,54,080/-(Rupees Four lakhs Crl. R.P. No. 2959/2010 3 fifty four thousand and eighty only). Considering the loss sustained to the complainant due the act of the accused, it is directed that if fine is recovered, Rs.4,50,000/- will be given to the complainant u/s.357(1)(b) of Cr.P.C and the default sentence is fixed as 45 days simple imprisonment. 3. Aggrieved by the above order of conviction and sentence, the revision petitioner had approached the appellate court by Judgment dated 17.03.2010 in Crl.Appeal No.655/2008, the Court of The Addl. District and Sessions Judge (Adhoc-III), North Paravur, dismissed the appeal confirming the conviction and sentence imposed against the appellant by the trial court in the impugned judgment. 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 Crl. R.P. No. 2959/2010 4 made out to interfere with the concurrent findings of the trial court as well as the lower appellate court. Therefore, I am of the view that the said submission can be considered favourably. 6. As this court is not inclined to interfere with the order of conviction, the learned counsel for the revision petitioner submitted that some breathing time may be granted to the revision petitioner to pay the fine amount. It is also submitted that the revision petitioner is presently working as a school master in an aided school and he has no contention on merit. He has also submitted that the sentence imposed by the courts below is highly exorbitant, unreasonable and arbitrary and the same may be set aside. It is the above conviction and sentence challenged in this revision petition. 7. 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 Crl. R.P. No. 2959/2010 5 priority over the punitive aspects. Considering the above facts and legal position, I am of the view that the sentence of imprisonment ordered by the court below can be modified and the petitioner can be granted 45 days time to pay the fine amount, and the amount will be enhanced slightly considering the fact that the cheque in question pertains to the year 2003. 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, in suppression of the sentence of imprisonment awarded by the court below, the sentence is confined to fine only and the fine amount is fixed as Rs.4,70,000/-(Rupees Four lakhs seventy thousand only), which shall be paid by the revision petitioner within 45 days from today and in case of any default in paying the amount within 45 days from today, the revision petitioner is directed to undergo simple imprisonment for a period of six months. Accordingly, the revision petitioner is directed to Crl. R.P. No. 2959/2010 6 deposit the fine amount on or before 24.11.2010. If there is any failure in depositing the amount, the trial court is free to take coercive steps to execute the sentence and to realize the fine amount. On realization of the fine amount, a sum of Rs.4,65,000/-(Rupees Four lakhs sixty five thousand only) shall be paid to the complainant as compensation u/s.357(1)(b) of Cr.P.C and the remaining portion will be deposited in the State Exchequer. Coercive steps if any pending against the revision petitioner shall be deferred till 24.11.2010. Criminal revision petition is disposed of accordingly. Sd/- V.K.MOHANAN, Judge. ss/. //True copy// P.A to Judge