IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2625 of 2010()
1. G.GOPALAKRISHNAN, S/O.N.GOVINDAN,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY PUBLIC
... Respondent
2. M.A.HAMEED, S/O.MOHAMMED SHERIF,
For Petitioner :SRI.K.P.SUJESH KUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :24/09/2010
O R D E R
V.K.MOHANAN, J.
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Crl. R.P.No.2625 of 2010
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Dated this the 24th 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.50,000/- and towards the
discharge of the said liability, the accused issued a cheque dated
29.4.2002 for a sum of Rs.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-
V, (Special Court for Mark list cases), Thiruvananthapuram, by
filing a formal complaint, upon which cognizance was taken
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u/s.138 of Negotiable Instruments Act and instituted
C.C.No.287/03. During the trial of the case, PW1, the
complainant himself was examined from the side of the
complainant and Exts.P1 to P5 were marked. No evidence either
oral or documentary 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 4
months and also ordered the revision petitioner, to pay a sum of
Rs.50,000/- to the complainant as compensation u/s.357(3) of
Cr.P.C., which on deposit in court shall be given to the
complainant, failing which the revision petitioner was directed to
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undergo simple imprisonment for 1 month.
3. Though an appeal was filed, at the instance of the
revision petitioner/accused, by judgment dated 22.4.2010 in
Crl.A.696/04, the Court of Addl. Sessions Judge, Fast Track
Court-III, Thiruvananthapuram, allowed the appeal only in part,
confirming the conviction but the sentence imposed against the
accused is modified and reduced to till the rising of the court and
sentenced to pay compensation of Rs.50,000/- to the
complainant u/s.357(3) of Cr.P.C. and in default to undergo
simple imprisonment for 1 month. It is also ordered that the
revision petitioner shall appear before the trial court on 26.6.2010
to receive the sentence. 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
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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 conviction
recorded by the courts below, the learned 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 inputs
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
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aspects. In the present case, the cheque in question is dated
29.4.2002, that too for an amount of Rs.50,000/-. Thus as per
the records and the findings of the courts below, which approved
by this court, a sum of Rs.50,000/- which belonged to the
complainant is in the hands of the revision petitioner for the last 8
years. Considering the above facts and settled legal position, I
am of the view that the sentence of imprisonment ordered
against the revision petitioner can be maintained and some time
can be granted to the revision petitioner to pay the compensation
amount.
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 confirming the sentence of imprisonment
ordered by the appellate court and also the direction to pay the
compensation amount, the revision petitioner is granted 45 days
time to pay the compensation amount and the default sentence
fixed by the lower appellate court will be attracted only when the
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revision petitioner makes any failure in paying the compensation
amount within 45 days from today. Accordingly, the revision
petitioner is directed to appear before the trial court on
8.11.2010, to receive the sentence of imprisonment and to pay
the compensation amount as directed 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 paying the
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 execution of warrant if any, pending against the revision
petitioner shall be deferred till 8.11.2010.
Criminal revision petition is disposed of accordingly.
V.K.MOHANAN,
Judge.
ami/