IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1869 of 2010()
1. CHANDRASHEKHARA HOLLA,ART MASTER,
... Petitioner
Vs
1. PRAVEEN.G,S/O.GOPALAN,GANESH HOUSE,
... Respondent
2. STATE OF KERLA,REPRESENTED BY THE
For Petitioner :SRI.T.SETHUMADHAVAN
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :22/06/2010
O R D E R
V.K.MOHANAN, J.
-------------------------------
Crl. R.P.No.1869 of 2010
-------------------------------
Dated this the 22nd day of June, 2010.
O R D E R
The accused in prosecution for an offence u/s.138 of
Negotiable Instruments Act is the revision petitioner, who 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 30.12.2007 for
Rs.1,05,000/-, which when presented for encashment
dishonoured 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 same allegation, the complainant
approached the Judicial First Class Magistrate Court-II, (Addl.
Munsiff), Kasaragod, by filing a formal complaint, upon which
cognizance was taken u/s.138 of Negotiable Instruments Act
and instituted C.C.No.401/08 by judgment dated 17.1.2009.
Crl. R.P.No.1869 of 2010
2
During the trial of the case, PW1 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 3 months and to a sum of Rs.1,05,000/- as
compensation u/s.357(3) of Cr.P.C, which when realised,
ordered to pay to the complainant. The default sentence is fixed
as 1 month simple imprisonment.
3. In appeal, at the instance of the revision petitioner/
accused in Crl.A.48/09, by judgment dated 12.3.2010 in the
Crl. R.P.No.1869 of 2010
3
Court of Sessions, Kasaragod, confirmed the conviction of the
revision petitioner u/s.138 of Negotiable Instruments Act.
Whereas the sentence of imprisonment reduced to 10 days and
while maintaining the compensation amount, the default
sentence is enhanced to 3 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
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
Crl. R.P.No.1869 of 2010
4
Instruments Act, is confirmed.
6. The learned counsel submitted that some breathing time
may be granted to the revision petitioner to pay the
compensation amount and also submitted that the sentence of
imprisonment may be set aside. Having regard to the facts and
circumstances involved in the case, I am of the view that the said
submission can be considered favourably with slight
modifications with respect to the compensation amount.
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 for an
amount of Rs.1,05,000/-. Thus as per the records, as on today
and the findings of the courts below, which approved by this
court, a sum of Rs.1,05,000/- belonged to the complainant is in
the hands of the revision petitioner for the last 2 = years.
Considering the above facts and legal position, I am of the view
Crl. R.P.No.1869 of 2010
5
that the sentence of imprisonment can be reduced but the fine
amount ordered by the courts below can be enhanced and the
revision petitioner can be granted 3 months time to pay the fine
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 trial court as well
as the lower appellate court. Accordingly, the revision petitioner
is sentenced to undergo simple imprisonment till rising of the
court and he is also directed to pay a sum of Rs.1,10,000/- as
compensation to the complainant u/s.357(3) of Cr.P.C. If there
is any failure on the part of the revision petitioner in paying the
compensation, he is directed to undergo simple imprisonment for
a period of 3 months. Accordingly, the revision petitioner is
directed to appear before the trial court on 22.9.2010 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
Crl. R.P.No.1869 of 2010
6
fine 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 is pending against the revision petitioner, shall
be deferred till 22.9.2010.
Criminal revision petition is disposed of accordingly.
V.K.MOHANAN,
Judge.
ami/