IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2273 of 2010()
1. JIJI MATHEW, AGED 52 YEARS,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. R.RAVINDRAN NAIR,
For Petitioner :SRI.S.DILEEP (KALLAR)
For Respondent :SRI.A.C.THOMAS ADHIKARAM
The Hon'ble MR. Justice V.K.MOHANAN
Dated :03/08/2010
O R D E R
V.K. MOHANAN, J
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Crl.R.P.No.2273 OF 2010
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Dated this the 3rd 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 court below.
2. The case of the complainant is that the accused/revision
petitioner, towards the discharge of debt of Rs.2,25,000/-which
due to the complainant, the accused issued two cheques Ext.P1
and P2 dated respectively for an amount of Rs.1,00,000/- and
Rs.1,25,000/-, which when presented for encashment
dishonoured, due to the reason that there was no sufficient fund
in the account maintained by the accused and the cheque
amounts was not repaid in spite of formal demand notice and
thus the revision petitioner has committed the offence punishable
under section 138 of Negotiable Instruments Act. With the said
allegation, the complainant approached the Judicial First Class
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Magistrate Court, Muvattupuzha, by filing a formal complaint,
upon which cognizance was taken u/s.138 of Negotiable
instruments Act and instituted C.C.No.1109/1999. During the trial
of the case, PW1 was examined from the side of the accused and
Exts.P1 to P13 were marked. From the side of the complainant no
document was produced, through the accused himself got
examined as DW1. On the basis of the available materials and
evidence on record, the trial court has found that the cheques in
question were issued by the revision petitioner/accused for the
purpose of discharging the 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 accused/revision petitioner to undergo simple
imprisonment for one year and he is also sentenced to pay a fine
of Rs.5,000/-. The default sentence is fixed as three months
imprisonment. It is also ordered that if the fine amount is
realised, the same shall be given to the complainant as
compensation u/s.357(1) of Cr.P.C. The trial court ordered that
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the sentence of imprisonment ordered against accused in
CC.No.615/1999 and in the present case shall run concurrently.
3. Though an appeal was filed by accused/revision
petitioner, by judgment dated 31.1.2005 in Criminal Appeal
No.816/03, the court of Additional Sessions Judge,(Adhoc-I),
Ernakulam allowed the appeal only in part and the sentence of
simple imprisonment for one year awarded by the lower court to
the petitioner was set aside. It is the above conviction and
sentence challenged in this revision petition.
4. I have head 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. 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
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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. As this court is not inclined to interfere with the order of
conviction recorded by the courts below, learned counsel for the
revision petitioner submitted that the sentence of imprisonment
ordered by the court below is highly unreasonable and exorbitant
and also submitted that the sentence of fine ordered by the court
below may be set aside. Revision petitioner may be permitted to
pay compensation to the complainant. Having regard to the facts
and circumstances involved in the case, I am of the view that this
submission can be considered favourably.
7. The two cheques involved in this case are altogether for
an amount of Rs.2,25,000/- as per the findings of court below,
which approved by this court, the said amount belongs to the
complainant but the same is with the revision petitioner till now.
The apex court in the 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. On
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hearing the counsel appearing for both sides and considering the
above facts and settled legal position, I am of the view that the
revision petitioner can be directed to pay an amount as
compensation to the respondent/complainant.
In the result, this revision petition is disposed of confirming
the the conviction against revision petitioner u/s 138 of
Negotiable Instrument Act, as recorded by the lower appellate
court. Accordingly in modification of the sentence to pay fine, the
revision petitioner is sentenced to undergo simple imprisonment
for one day, ie., till the raising of the court and he is also directed
to pay a sum of Rs.3,25,000/- to the complainant as
compensation within four months from today u/s.357(3) Cr.P.C.
and in case of any failure in paying the amount within the above
stipulated time, revision petitioner is directed to undergo simple
imprisonment for a period of two months. Accordingly the
revision petitioner is directed to appear before the trial court on
3.12.2010 to receive the sentence and pay compensation amount
as fixed by this court. The revision petitioner is free to pay
compensation amount either directly to the complainant or by
remitting the same in the trial court, whichever subject to the
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satisfaction of the learned Magistrate. In case of any failure on
the part of the revision petitioner in appearing before the court
below at the above date and making payment, the trial court is
free to take coercive steps to secure the presence of the
petitioner and to execute the sentence and for realisation of the
compensation amount.
This criminal revision petition is disposed of accordingly.
V.K. MOHANAN,
JUDGE.
Sou.