IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1481 of 2010()
1. A.M.M BASHEER,S/O.MOIDEENKUNHI BARI,
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY PUBLIC
... Respondent
2. M/S FIVE STAR METALS PVT.LTD.,PALLAVUR,
For Petitioner :SRI.P.R.VENKETESH
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :02/07/2010
O R D E R
V.K.MOHANAN, J.
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Crl.R.P.No.1481 of 2010
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Dated this the 2nd day of July 2010
O R D E R
The accused in a prosecution for an offence u/s.138 of
the 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 towards the
sale of granite metal produced by the complainant company
and in discharge of the liability arise out of the purchase,
the accused have issued a cheque dated 31.3.2000 for an
amount of Rs.1,25,000/- and another cheque with the same
date for an amount of Rs.1,00,000/- and when those
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cheques were presented for encashment, dishonoured as
there was no sufficient fund in the account maintained by
the accused. Though a formal demand notice was sent
demanding to repay the cheques amount, no amount was
paid and thus the revision petitioner has committed the
offence punishable u/s.138 of the Negotiable Instruments
Act. With the said allegation, the complainant approached
the Chief Judicial Magistrate, Palakkad by filing a formal
complaint, upon which cognizance was taken u/s.138 of the
Negotiable Instruments Act and instituted
C.C.No.197/2000. During the course of the trial PWs.1 and
2 were examined from the side of the complainant and
produced Exts.P1 to P7 documentary evidences. 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
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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 the
Negotiable Instruments Act. On such conviction, the trial
court sentenced the revision petitioner/accused to undergo
simple imprisonment for 6 months and to pay a fine of
Rs.2,50,000/- to the complainant as compensation and the
default sentence is fixed as 6 months simple imprisonment.
3. Challenging the above conviction and sentence,
though an appeal was filed by the revision petitioner, by
judgment dated 27.4.2007 in Crl.A.No.62/2004, the Court
of Addl.Sessions Judge, Fast Track-I, Palakkad allowed the
appeal only in part and while confirming the conviction and
the sentence of imprisonment, default sentence is reduced
to 3 months simple imprisonment. It is the above conviction
and sentence challenged in this appeal.
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4. 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 was endorsed by the
courts below against the revision petitioner u/s.138 of the
Negotiable Instruments Act.
5. The learned counsel for the revision petitioner
submitted that a breathing time may be granted to the
revision petitioner to pay the compensation amount. The
said submission can be considered favourably but subject to
other facts and circumstances involved in the case. As per
the findings of the courts below, which approved by this
Court the two cheques involved in this case are pertaining
to the year 2000. Thus, a total sum of Rs.2,25,000/- which
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belonging to the complainant is with the revision petitioner
for the last 10 years. But the courts below now ordered
only a sum of Rs.2,50,000/- as compensation. The appellate
court disposed of the Crl.Appeal on 27.4.2007 thereafter
also 3 years are over. The Apex Court in the Decision in
Damodar.S.Prabhu v. Sayed Babalal.H [J.T. 2010 (4) SC
457] has held that in the case of dishonour of cheques, the
compensatory aspect of the remedy shall be given
preference than the punitive aspect. Therefore considering
the entire facts and circumstances involved in the case and
the legal position as on today, I am of the view that while
granting some time to make the payment, the amount can
be enhanced slightly and accordingly, sentence of
imprisonment can be reduced and the revision petitioner
can be directed to pay a sum of Rs.2,75,000/- as
compensation to the complainant under Sec.357(3) of
Cr.P.C.
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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 court below.
Accordingly, the sentence of imprisonment imposed against
the revision petitioner, as modified and fixed by the lower
appellate court, is reduced from 3 months imprisonment to
one day ie; till the rising of the court and the revision
petitioner is directed to pay a sum of Rs.2,75,000/- to the
complainant as compensation under Sec.357(3) of Cr.P.C.
and in case of failure in paying the compensation, the
revision petitioner is directed to undergo simple
imprisonment for a period of 6 months. Accordingly, the
revision petitioner is directed to appear before the trial
court on 4th October, 2010 to receive the sentence 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
making the deposit of compensation amount, the trial court
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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,
taken against the petitioner shall be kept in abeyance till
4.10.2010.
V.K.MOHANAN, JUDGE.
Jvt