IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2858 of 2010()
1. ABDUL RASHEED,KONDATTUPARAMBIL HOUSE,
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY
... Respondent
2. KOTTAYAM URBAN WELFARE CO-OPERATIVE
For Petitioner :SRI.R.AZAD BABU
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :06/10/2010
O R D E R
V.K.MOHANAN, J.
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Crl. R.P.No.2858 of 2010
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Dated this the 6th day of October, 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 availed
a daily collection loan from the complainant bank but there was
default in paying the loan amount and finally the accused issued
a cheque dated 24.7.2006 for an amount of Rs.21,841/-, which
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-Kottayam, by filing a formal
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complaint, upon which cognizance was taken u/s.138 of
Negotiable Instruments Act and instituted S.T.No.2899/06.
During the trial of the case, the complainant himself was
mounted to the box and gave evidence as PW1 and Exts.P1 to
P9 were marked, from the side of the complainant. From the
side of the defence, Ext.D1 was produced and marked, though
no oral evidence was 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 month and to
pay a fine of Rs.21,841/- and it is also ordered that if the said
amount is realised, the entire amount shall be given to the
complainant as compensation u/s.357(1)(b) of Cr.P.C. and the
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default sentence is fixed as 1 month simple imprisonment.
3. Though an appeal was filed, at the instance of the
revision petitioner/accused, by judgment dated 26.7.2010 in
Crl.A.382/09, the Court of Sessions Judge-Kottayam Division,
allowed the appeal only in part, confirming the conviction
imposed against the revision petitioner by the trial court.
Accordingly, the sentence of imprisonment ordered by the trial
court is also confirmed but the direction to pay fine is set asided
and the revision petitioner is directed to pay compensation of
Rs.21,841/- to the complainant u/s.357(3) of Cr.P.C. and in
default to undergo simple imprisonment for 1 month.
Accordingly, the revision petitioner was directed to appear
before the trial court on 27.9.2010 to receive the sentence and
to pay compensation amount. 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, the sentence of imprisonment
ordered by the courts below is unreasonable and exorbitant and
the same may be set aside and also submitted that, some
breathing time may be granted to pay the compensation amount.
7. In the present case the complainant is a co-operative
institution and the loan availed by the accused is for an amount
of Rs.15,000/-. 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
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compensatory aspect of the remedy should be given priority
over the punitive aspects. Therefore, considering the above
settled legal position and the facts referred above, I am of the
view that the sentence of imprisonment ordered by the trial court
and confirmed by the appellate court can be modified and the
revision petitioner can be granted one month time to pay
compensation.
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, in modification of the sentence of imprisonment
ordered by the trial court, which confirmed by the appellate
court, is reduced and the revision petitioner is directed to
undergo simple imprisonment for one day ie., till the rising of the
court and the revision petitioner is granted one month time to
pay the compensation as ordered by the appellate court and it is
made clear that the default sentence fixed by the appellate court
will attract only in case of any default in paying the
compensation amount within the stipulated period fixed by this
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court. Accordingly, the revision petitioner is directed to appear
before the trial court on 6.11.2010, to receive the sentence of
imprisonment and to pay the compensation amount, as fixed by
this court. If the compensation amount is realised, the same
shall be given to the complainant u/s.357(3) of Cr.P.C. 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.
Coercive steps if any, pending against the revision petitioner
shall be deferred till 6.11.2010.
Criminal revision petition is disposed of accordingly.
V.K.MOHANAN,
Judge.
ami/