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. 2662 of 2010() -------------------------------------------- CRA.327/2009 of ADDL. SESSIONS COURT (ADHOC)-II, ALAPPUZHA CC.61/2007 of JDUL.MAGISTRATE OF FIRST CLASS, RAMANKARI .................... REVN. PETITIONER(S): APPELLANT/COUNTER PETITIONER --------------------------------------------------------------------------------------- DILEEP KUMAR, S/O.K.R.DIVAKARAN, KOCHALUMMOOTTIL, THURUTHY, P.O.CHANGANACHERRY, KOTTAYAM DISTRICT. BY ADV. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN RESPONDENT(S): RESPONDENTS/PETITIONERS ----------------------------------------------------------------------- 1. T.N.SANU, S/O.NARAYANAN, THOLATTU HOUSE, KAVALAM P.O., ALAPPUZHA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.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.2662 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.75,000/- from the complainant and towards the discharge of the debt due to the complainant, he issued a cheque dated 11.8.2006 for a sum of Rs.75,000/-, 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-Ramankary, by filing a formal complaint, upon 2 Crl. R.P.No.2662 of 2010 which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.61/07. During the trial of the case, the complainant himself was mounted to the box and gave evidence as PW1 and Exts.P1 to P6 were marked, from the side of the complainant. 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 a period of 3 months and to pay a compensation of Rs.75,000/- to the complainant u/s.357(3) of Cr.P.C. and the default sentence was fixed as 2 months simple imprisonment. 3 Crl. R.P.No.2662 of 2010 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 31.7.2010 in Crl.A.327/09, the Court of Addl. Sessions Judge (Fast Track-II), Alleppey, dismissed the appeal, confirming the conviction and sentence imposed against the revision petitioner. 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 approved. 4 Crl. R.P.No.2662 of 2010 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, the sentence of imprisonment ordered by the courts below is exorbitant and unreasonable and the same may be set aside and also further submitted that, some breathing time may be granted to pay the compensation amount. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered but subject to other relevant inputs 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 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 11.8.2006, for an amount of Rs.75,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.75,000/-, which belonged to the 5 Crl. R.P.No.2662 of 2010 complainant is with the revision petitioner for the last 4 years. Considering the above settled legal position and the facts referred above, I am of the view that the sentence of imprisonment ordered by the court below can be modified and while granting some time to pay the compensation amount to the revision petitioner, the amount can be enhanced slightly. 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 ordered by the court below is modified and reduced to one day simple imprisonment ie., till the rising of the court and further directed the revision petitioner to pay a compensation of Rs.82,000/- u/s.357(3) of Cr.P.C. to the complainant, within 3 months from today and in case any default in paying the compensation amount, the revision petitioner is directed to undergo simple imprisonment for a period of 2 months. Accordingly, the revision petitioner is directed to appear before the trial court on 7.12.2010, to receive the 6 Crl. R.P.No.2662 of 2010 sentence and to pay the modified compensation amount. In case any failure on the part of the revision petitioner in appearing before the court below as directed above and in paying the 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. The coercive steps if any, pending against the revision petitioner shall be deferred till 7.12.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/