IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1659 of 2010()
1. P.V.VARGHESE, INCHAKALAYIL HOUSE,
... Petitioner
Vs
1. K.P.PADMANABHAN NAIR, UPASANA HOUSE,
... Respondent
2. STATE OF KRALA, REPRESENTED BY THE
For Petitioner :SRI.MATHEW JOHN (K)
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :02/06/2010
O R D E R
V.K.MOHANAN, J.
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Crl.R.P. No.1659 of 2010
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Dated this the 2nd day of June 2010
O R D E R
This revision petition is preferred by an accused in a
prosecution for the offence under Section 138 of the Negotiable
Instrument Act as he is aggrieved by the conviction and sentence
imposed against him.
2. The case of the complainant against the revision
petitioner is that towards the discharge of the debt of
Rs.2,70,000/-which was due to the complainant, the revision
petitioner issued two cheques, one for Rs.1,20,000/- which is
dated 31.12.2006 and another cheque dated 31.03.2007 for
Rs.1,50,000/- and when those cheques were presented for
encashment, returned as dishonoured for want of sufficient
funds in the account maintained by the revision petitioner.
According to the complainant, though a formal demand was
made through the counsel intimating him the dishonour of the
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cheques and demanding for repayment of the amount covered by
the two cheques but no payment was made and hence he
approached the Judicial First Class Magistrate-V, Kottayam with
the above allegation. The learned Magistrate took cognizance
for the offence under section 138 of the N.I.Act and instituted
S.T.No.2039/2007. During the course of the trial, the
complainant himself examined as PW1 and he gave oral evidence
and besides the above he produced Exts.P1 to P8 documents.
Absolutely no evidence was adduced from the side of the
defence. The learned Magistrate, after considering all the
materials and evidence on record, has held that the complainant
has established the execution and issuance of Ext.P1 series of
cheques and accordingly held that the complainant is entitled to
get benefit of presumption u/s. 118 and 139 of the N.I.Act. Thus,
the trial court found the revision petitioner guilty and
accordingly convicted him u/s. 138 of the N.I.Act and sentenced
him to undergo simple imprisonment for two months and also
directed to pay a sum of Rs.2,70,000/- to the complainant as
compensation as envisaged u/s.357(3) of Cr.P.C. and default
sentence is fixed as 15 days simple imprisonment. Challenging
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the above verdict, the conviction and sentence, the revision
petitioner has preferred Crl.A.No.286/2009, but by judgment
dated 06.02.2010 the learned Sessions Judge, Kottayam
dismissed the appeal. It is the above judgments of the courts
below and the conviction and sentence imposed against the
revision petitioner, challenged in this revision petition.
3. I have heard Sri.Mathew John, the learned counsel
appearing for the revision petitioner and also perused the
judgments of the courts below.
4. On a consideration of the arguments advanced by the
learned counsel for the revision petitioner and on perusal of the
judgments, it appears that the accused/revision petitioner has
admitted the execution and issuance of the cheques, though not
as claimed by the complainant. According to the
accused/revision petitioner the two cheques which are the
subject matter in the present transaction, along with two other
cheques hand over to the son of the complainant by way of
security towards the repayment of an amount of Rs.50,000/-
borrowed by the accused from the son of the complainant. The
trial court as well as the lower appellate court has considered
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the above plea of the revision petitioner. Admittedly no
materials or evidence produced by the revision petitioner to
substantiate the above contention. When the accused in a
transaction for the offence u/s.138 of the N.I.Act, admits the
execution and issuance of the cheque, though not as claimed by
the complainant or connected with the transaction pleaded by
the complainant, it is heavily upon the accused to substantiate
his pleading as to how the cheque in question reached in the
hands of the complainant and also to establish that the same
were reached in the hands of the complainant through the
transaction claimed by him. But in the present case no such
materials or evidence produced. Therefore, I find no fault with
the finding and facts arrived on by the trial court as well as
lower appellate court in favour of the complainant, on the basis
of the materials and evidence furnished by the complainant.
Therefore, in the absence of any specific case to exercise the
revisional jurisdiction of this court to interfere with the
concurrent finding of the court below, I have to approve the
conviction recorded by the trial court as well as the lower
appellate court against the revision petitioner.
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5. The learned counsel for the revision petitioner
submitted that breathing time may be granted to the revision
petitioner to make the payment and leniency may be shown in
the matter of sentence. Considering the facts and circumstances
of the case, I am of the view that the said submission can be
considered favourably in favour of the revision petitioner but
subject to other relevant inputs.
6. It has to be noted that the two cheques in question
dated 31.12.2006 and 31.03.2007 were for a total sum of
Rs.2,70,000/-. Thus going by the evidence on record it is crystal
clear that a total sum of Rs.2,70,000/- which belonging to the
complainant is with the revision petitioner. The trial court after
finding the guilt of the revision petitioner sentenced him to
undergo simple imprisonment for two months and further
directed to pay a sum of Rs.2,70,000/- to the complainant as
compensation, in case of any default, the revision petitioner is
directed to undergo simple imprisonment for 15 days. In the
decision of the Supreme Court in Ahammedkutty v.
Abdullakoya represented in 2009(6) Supreme Court cases
661, the Apex Court has held that no default sentence can be
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imposed on failure of paying the compensation as directed under
Sec.357(3) of Cr.P.C. The Apex court has also held in the
decision in Damodar S. Prabhu v. Sayed Babulal. H
represented in J.T.2010(4) SC Page 457 that in the case of
dishonour of cheque the court has to consider the remedial
aspect than the punitive aspect. Considering the above settled
legal position and considering the fact that a sum of
Rs.2,70,000/- was in the hands of the revision petitioner for more
than 4 years. I am of the view that the sentence of imprisonment
can be reduced and the sentence of fine can be imposed, fixing
the fine amount little more than the cheque amount and the
default sentence can be fixed so as to ensure the payment of the
amount to the complainant.
In the result, this revision petition is disposed of
confirming the conviction of the revision petitioner under
Sec.138 of the N.I.Act as recorded by the trial court as well as
lower appellate court. Accordingly the revision petitioner is
sentenced to undergo a simple imprisonment till the rising of the
court and he is also sentenced to pay a fine of Rs.3,00,000/- and
in default in paying the fine amount, he is directed to undergo
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simple imprisonment for a period of six months and on
realisation of the fine amount, a sum of Rs.2,95,000/- shall be
paid to the complainant under Sec.357(1)(b) of Cr.P.C.
Accordingly, the revision petitioner is directed to appear before
the trial court on 2.9.2010 so as to receive the sentence and to
pay the fine amount. If there is no failure on the part of the
revision petitioner in appearing before the court below as
directed above and making the fine amount, the trial court is
free to initiate coercive steps to secure the presence of the
revision petitioner and to execute the sentence. The execution of
the warrant, if any, pending against the revision petitioner shall
be deferred till 2.9.2010.
V.K.MOHANAN, JUDGE
Jvt