IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2499 of 2010()
1. JAMES ABRAHAM, S/O.ABRAHAM,
... Petitioner
Vs
1. SATHYAN T.V., S/O.A.V.AMBU,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.MATHEW JOHN (K)
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :19/08/2010
O R D E R
V.K.MOHANAN, J.
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Crl. R.P.No.2499 of 2010
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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.33,000/- from the complainant
and towards the discharge of the debt due to the complainant, he
issued a cheque dated 28.2.2004, for a sum of Rs.33,000/-,
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-II, Kasaragod, by filing a formal
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complaint, upon which cognizance was taken u/s.138 of
Negotiable Instruments Act and instituted C.C.No.617/05.
During the trial of the case, PW1, the complainant himself was
examined from the side of the complainant and Exts.P1 to P6
were marked. No oral or documentary evidence 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 2 months and to pay a compensation of
Rs.33,000/- u/s.357(3) of Cr.P.C. and the default sentence was
fixed as 1 month simple imprisonment.
3. Though an appeal was filed, at the instance of the
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revision petitioner/accused, by judgment dated 19.12.2009 in
Crl.A.148/06, the Court of Addl. District & Sessions Judge (Ad
hoc-III), Kasaragod, dismissed the appeal, confirming the
conviction and sentence of the revision petitioner u/s.138 of
Negotiable Instruments Act. 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.
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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 unreasonable and exorbitant and
the same may be set aside and further submitted that, some
breathing time may be granted to deposit 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 facts 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
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
28.2.2004, for an amount of Rs.33,000/-. Thus as per the
records and the findings of the courts below, which approved by
this court, a sum of Rs.33,000/-, which belonged to the
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complainant is with the revision petitioner for the last 6 years.
Therefore, considering the above facts and the settled legal
position, I am of the view that, the sentence of imprisonment
ordered by the courts below, can be modified and at the same
time, the revision petitioner can be granted some time to pay the
compensation amount but subject to slight enhancement with
respect to the compensation amount, considering the fact that
the amount was due from 2004 onwards.
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 courts
below is modified and reduced to one day simple imprisonment
ie., till the rising of the court and the revision petitioner is directed
to pay a compensation of Rs.37,000/- to the complainant u/s.357
(3) of Cr.P.C., within 3 months from today and in case of default
in paying the compensation amount, the revision petitioner is
directed to undergo simple imprisonment for 3 months.
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Accordingly, the revision petitioner is directed to appear before
the trial court on 16.11.2010, to receive the sentence of
imprisonment and to pay the compensation amount, as fixed 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 payment 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.
Criminal revision petition is disposed of accordingly.
V.K.MOHANAN,
Judge.
ami/