IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 19TH AUGUST 2010 / 28TH SRAVANA 1932 Crl.Rev.Pet.No. 382 of 2009() ----------------------------- CRA.462/2006 of ADDL.SESSIONS COURT (ADHOC)III, MANJERI ST.7379/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT, TIRUR .................... PETITIONER/APPELLANT/ACCUSED ---------------------------------------------------- SHAJI.C. HINDI TEACHER, NAVAMUKUNDA HIGH SCHOOL, THIRUNAVAYA, MALAPPURAM DISTRICT. BY ADV. SRI.M.N.UNNIKRISHNAN SRI.C.DILIP RESPONDENT(S): RESPONDENT/COMPLAINANT & STATE ----------------------------------------------------------------------------------- 1. K.HARIPRAKASH, S/O.NARAYANAN, HARI NIVAS MUTHOOR P.O. TIRUR, MALAPPURAM DISTRICT. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR MRS.PUSHPALATHA.M.K THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: dmb V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.382 of 2009 ------------------------------- Dated this the 19th day of August, 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.1,50,000/- from the complainant and towards the discharge of the debt due to the complainant, he issued a cheque dated 15.9.2003 for a sum of Rs.1,50,000/-, 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 approached the Judl. First Class Magistrate Court-Tirur, by filing a formal complaint, Crl. R.P.No.382 of 2009 2 upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.7379/03. During the trial of the case, PW1, the complainant himself was examined from the side of the complainant and Exts.P1 to P7 were marked. From the side of the defence Dws.1 to 3 were examined and no documentary evidence adduced. 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 3 months and to pay a sum of Rs.1,50,000/- to the complainant as compensation u/s.357(3) of Cr.P.C. and the default sentence was fixed as 2 months simple imprisonment. Crl. R.P.No.382 of 2009 3 3. Though an appeal was filed, at the instance of the revision petitioner/ accused, by judgment dated 22.8.2007 in Crl.A.462/06, the Court of Addl. Sessions Judge, Fast Track Court-III (Adhoc), Manjeri, allowed the appeal only in part, sustaining the conviction of the revision petitioner u/s.138 of Negotiable Instruments Act and sentence of simple imprisonment for 3 months and setting aside the order to pay compensation u/s.357(3) of Cr.P.C. 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 Crl. R.P.No.382 of 2009 4 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. 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, a lenient view may be taken in the matter of sentence of imprisonment since the revision petitioner is working as a school teacher and he is ready to pay the compensation amount to the complainant. 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 facts and circumstances in the case. 7. In the present case, the cheque in question is dated 15.9.2003, for an amount of Rs.1,50,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.1,50,000/-, which belonged to the complainant is with the revision petitioner for the last 7 years. 8. Even though the complainant has not approached this Crl. R.P.No.382 of 2009 5 court for not awarding the compensation, I am of the view that the lower appellate court is not fully correct in imposing sentence of imprisonment only, against the revision petitioner and not making any order to pay compensation. 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. Having regard to the above facts and the settled legal position, I am of the view that the sentence of imprisonment ordered by the lower appellate court can be modified and reduced to one day simple imprisonment and at the same time, the revision petitioner can also be directed to pay compensation to the complainant, with slight enhancement, with respect to the amount, covered by the cheque. 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. Crl. R.P.No.382 of 2009 6 Accordingly, in modification of the sentence of the imprisonment ordered by the lower appellate court, the same is reduced to one day simple imprisonment ie., till rising of the court and the revision petitioner is further directed to pay a sum of Rs.1,75,000/- as compensation to the complainant u/s.357(3) of Cr.P.C., within one month from today and in case of default in paying the compensation amount, within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for 3 months. Accordingly, the revision petitioner is directed to appear before the trial court on 18.9.2010 to receive the sentence of imprisonment and to pay the compensation amount as directed by this court. On realisation of the above mentioned compensation amount, a sum of Rs.1,72,500/- shall be paid to the complainant and the remaining amount shall be paid to the State Exchequer. In case, any failure on the part of the revision petitioner, in appearing before the court below as directed above and in making the payment of compensation amount, the trial court is free to take coercive steps to secure the presence of the Crl. R.P.No.382 of 2009 7 revision petitioner and to execute the sentence awarded against the revision petitioner. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/