IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2038 of 2010()
1. C.A.RASHEED, AGED 40 YEARS,
... Petitioner
Vs
1. NAJEEBUDDEEN.M.H, AGED 30 YEARS,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.S.JIJI
For Respondent :SRI.T.B.SHAJIMON
The Hon'ble MR. Justice V.K.MOHANAN
Dated :27/07/2010
O R D E R
V.K.MOHANAN, J.
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Crl. R.P.No.2038 of 2010
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Dated this the 27th day of July, 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, towards the discharge of a debt due to the
complainant, issued a cheque dated 3.4.2007 for a sum of
Rs.5,00,000/-, 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 Judicial First Class Magistrate
Court-II (Addl. Munsiff), Kasaragod, by filing a formal complaint,
Crl. R.P.No.2038 of 2010
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upon which cognizance was taken u/s.138 of Negotiable
Instruments Act and instituted C.C.No.2/08. 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. 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 a period of 6 months and to
pay a compensation of Rs.5,00,000/- to the complainant u/s.357
(3) of Cr.P.C. and the default sentence is fixed as 3 months
simple imprisonment.
Crl. R.P.No.2038 of 2010
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3. Though an appeal is filed at the instance of the revision
petitioner/accused, by judgment dated 28.1.2010 in
Crl.A.145/08, the Court of Sessions, Kasaragod, allowed the
appeal in part, confirming the conviction of the revision
petitioner u/s.138 of Negotiable Instruments Act but the
sentence is modified and reduced to 10 days simple
imprisonment and the compensation amount was confirmed but
the default sentence was fixed as 6 months simple
imprisonment. 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
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
Crl. R.P.No.2038 of 2010
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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. The counsel for the revision petitioner submitted that,
some breathing time may be granted to him to pay the
compensation amount and also submitted that as the
imprisonment ordered is unreasonable, the same may be
reduced. I am of the view that the said submission can be
considered favourably but subject to other relevant materials
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 aspect of the remedy should be given priority
over the punitive aspects. In the present case, the cheque in
question is dated 3.4.2007, for an amount of Rs.5,00,000/-.
Thus as per the records and the findings of the courts below,
Crl. R.P.No.2038 of 2010
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which approved by this court, a sum of Rs.5,00,000/-, which
belonged to the complainant, is in the hands of the revision
petitioner for the last 3 years. Considering the above facts and
legal position, I am of the view that, the sentence of
imprisonment can be reduced and at the same time, the
compensation amount fixed by the courts below can be slightly
enhanced and the revision petitioner can be granted 3 months
time 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, the sentence of imprisonment ordered by the lower
appellate court is modified and reduced to one day simple
imprisonment ie., till the rising of the court and the revision
petitioner is directed to pay compensation of Rs.5,15,000/- to
the complainant, within 3 months from today. In case, any
default in paying the compensation amount within the stipulated
period, the revision petitioner is directed to undergo simple
Crl. R.P.No.2038 of 2010
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imprisonment for a period of 6 months. Accordingly, the
revision petitioner is directed to appear before the trial court on
27.10.2010 to receive the sentence and to pay the
compensation amount. 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 him. If, any coercive steps is pending against the
revision petitioner, the same shall be deferred till 27.10.2010.
Criminal revision petition is disposed of accordingly.
V.K.MOHANAN,
Judge.
ami/