IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1561 of 2010()
1. CHANDRASHEKHARA HOLLA, ART MASTER,
... Petitioner
Vs
1. UNNIKRISHNA, S/O.LATE NARAYANAN NAIR,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.T.SETHUMADHAVAN
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :20/05/2010
O R D E R
V.K.MOHANAN, J.
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Crl.R.P.No. 1561 of 2010
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Dated this the 20th day of May, 2010
O R D E R
This Criminal Revision Petition is preferred by the
accused in a prosecution for the offence punishable under
Section 138 of the Negotiable Instruments Act, 1881 (for
short ‘the N.I.Act’) as he is aggrieved by the conviction and
sentence imposed against him, both by the trial court as
well as the lower appellate court.
2. The case of the complainant is that the revision
petitioner/accused borrowed a sum of Rs.75,000/- and
towards the discharge of the said liability, the revision
petitioner/accused issued a cheque dated 30.9.2007 for the
said amount. According to the first respondent/complainant,
when the said cheque was presented for encashment, it was
dishonoured for want of sufficient fund and accordingly, he
approached the Judicial First Class Magistrate Court-II
(Additional Munsiff), Kasaragod, by filing a complaint upon
which cognisance was taken and C.C.No.307 of 2008 was
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instituted. During the trial of the case, the complainant
himself adduced oral evidence as PW1 and Exts.P1 to P8
were produced. No evidence either oral or documentary
was produced from the side of the defence. Based upon the
materials and evidence, the trial court found that the
revision petitioner/accused is guilty and accordingly, he is
sentenced to undergo simple imprisonment for three months
and further directed to pay a sum of Rs.75,000/- as
compensation to the complainant under Section 357(3) of
the Cr.P.C. and the default sentence is fixed as one month
imprisonment.
3. Challenging the above conviction and sentence,
though the revision petitioner had approached the Sessions
Court, Kasaragod by filing Crl.A.No.345 of 2008, by
judgment dated 11.2.2010, the learned Sessions Judge
allowed the appeal only in part and while confirming the
conviction, the sentence was modified and reduced to one
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day till rising of court and while maintaining the amount of
compensation ordered by the trial court, default sentence is
enhanced to two months simple imprisonment and
accordingly, the revision petitioner was directed to appear
before the trial court on 17.3.2010.
4. It is the above finding and order of conviction and
sentence of the court below challenged in this revision
petition. Going by the impugned judgments of the trial
court as well as the lower appellate court, it can be seen
that both the courts have concurrently found that the
complainant has established his case against the accused
and the courts have accepted the evidence and materials
produced by the complainant. From the discussions and the
materials relied on by the courts below, it can be seen that
the accused has not disputed the signature in Ext.P1 cheque
and the execution of the cheque. According to the revision
petitioner/accused, the cheque in question is the one which
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he entrusted with one Ramakrishna as a security when the
accused obtained loan from the said Ramakrishna. So the
signature as well as the execution of cheque are admitted by
the accused. Therefore, the question to be considered is
how far the accused succeeded in establishing his version
especially, as to how the cheque reached in the hands of the
complainant. Regarding this aspect, absolutely there is no
evidence adduced by the accused except his own
explanation. It was under the above factual circumstances,
the trial court as well as the lower appellate court repelled
the plea raised by the defence and found against him and
accordingly, came into a conclusion that the complainant
has succeeded in establishing his case against the accused.
Therefore, I find no merit in the revision petition.
5. Learned counsel for the revision petitioner
submitted that if this Court is not inclined to interfere with
the order of conviction, some breathing time may be
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granted to the revision petitioner to pay the amount and to
receive the sentence. This Court cannot ignore the fact that
the cheque is dated 30.9.2007 for a substantial amount of
Rs.75,000/-. Though the trial court imposed the sentence of
three months simple imprisonment while ordering the
payment of Rs.75,000/- as compensation, the lower
appellate court reduced the substantial sentence to one day
and directed the revision petitioner to pay the amount. So
far, no amount is paid to the complainant and therefore,
while granting some time to the revision petitioner to make
the payment, the amount of compensation can be enhanced
to Rs.80,000/- (Rupees Eighty Thousand only) which will be
sufficient to meet the ends of justice, especially in the light
of the decision reported in Damodar.S.Prabhu v. Sayed
Babalal.H. [JT 2010(4) SC 457] wherein it was 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.
6. In the result, this Criminal Revision Petition is
disposed of confirming the conviction of the revision
petitioner under Section 138 of the N.I.Act as recorded by
the trial court as well as the lower appellate court.
Regarding the sentence, the sentence modified and refixed
by the lower appellate court is maintained, but the
compensation amount is enhanced to Rs.80,000/- (Rupees
Eighty Thousand only) which shall be paid by the revision
petitioner to the complainant, and in case of default in
making the payment, the revision petitioner is directed to
undergo simple imprisonment for three months.
Accordingly, the revision petitioner is directed to appear
before the trial court on 20.8.2010 to receive the sentence
and to make the payment of compensation as revised and
refixed by this court. In case of any failure on the part of
the revision petitioner in appearing before the court below
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as directed above, the trial court is free to take coercive
steps to procure the presence of the revision petitioner and
to execute the sentence and to realise the compensation
amount. The coercive steps, if any, pending against the
revision petitioner shall be deferred till 20.8.2010.
V.K.Mohanan,
Judge.
MBS/
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V.K.MOHANAN, J.
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Crl.A.NO. OF 200
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J U D G M E N T
DATED: -2-2010
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