IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2635 of 2010()
1. K.SADANANDAN, S/O.ISSAC,
... Petitioner
Vs
1. JUSTIN FRANCIS S/O.FRANCIS,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.SUMAN CHAKRAVARTHY
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :06/09/2010
O R D E R
V.K.MOHANAN, J.
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Crl. R.P.No.2635 of 2010
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Dated this the 6th 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.2,50,000/- from the complainant
and towards the discharge of the debt, he issued a cheque dated
1.6.2005 for a sum of Rs.2,50,000/-, 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 initially approached the Judl. First Class Magistrate
Court-II, Neyyattinkara, by filing a formal complaint, upon which
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cognizance was taken u/s.138 of Negotiable Instruments Act and
instituted S.T.No.2873/05. Subsequently, the case was
transferred to the Judicial First Class Magistrate Court-V,
Neyyattinkara, wherein the case is renumbered as C.C.No.59/06.
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. Though no document was produced on the side of the
defence, Dws.1 and 2 were examined. 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 1 year and
to pay a compensation of Rs.2,55,000/- u/s.357(3) of Cr.P.C. and
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the default sentence was fixed as 4 months simple imprisonment.
3. Though an appeal was filed, at the instance of the
revision petitioner/accused, by judgment dated 1.7.2010 in
Crl.A.710/07, the Court of Addl. Sessions Judge-Trivandrum,
allowed the appeal only in part and while confirming the
conviction, sentenced the revision petitioner to undergo one day
simple imprisonment ie., till the rising of the court and directing to
pay a compensation of Rs.2,60,000/- to the complainant u/s.357
(3) of Cr.P.C. and the default sentence was fixed as 1 year simple
imprisonment. It is also ordered that on realisation of the
compensation amount, the entire amount shall be paid to the
complainant and directed the revision petitioner to appear before
the trial court on 30.8.2010. 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
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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.
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, 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 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
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aspect of the remedy should be given priority over the punitive
aspects. In the present case, the cheque in question is dated
1.6.2005, for an amount of Rs.2,50,000/-. Thus as per the records
and the findings of the courts below, which approved by this court,
a sum of Rs.2,50,000/-, which belonged to the complainant is with
the revision petitioner for the last 5 years.
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,
while the sentence of imprisonment and the direction to pay the
compensation amount as ordered by the lower appellate court is
maintained and the revision petitioner is granted one month time
to pay the compensation amount and in case of default in paying
the compensation amount, within the stipulated time, the revision
petitioner is directed to undergo simple imprisonment for 1 year as
ordered by the lower appellate court. Accordingly, the revision
petitioner is directed to appear before the trial court on 6.10.2010,
to receive the sentence of imprisonment and to pay the
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compensation amount. 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. The coercive steps if any, pending
against the revision petitioner shall be deferred till 6.10.2010.
Criminal revision petition is disposed of accordingly.
V.K.MOHANAN,
Judge.
ami/