IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2662 of 2010()
1. DILEEP KUMAR, S/O.K.R.DIVAKARAN,
... Petitioner
Vs
1. T.N.SANU, S/O.NARAYANAN,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.S.SANAL KUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :07/09/2010
O R D E R
V.K.MOHANAN, J.
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Crl. R.P.No.2662 of 2010
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Dated this the 7th day of September, 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 borrowed a sum of Rs.75,000/- from the complainant
and towards the discharge of the debt due to the complainant, he
issued a cheque dated 11.8.2006 for a sum of Rs.75,000/-, 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 Judl. First Class
Magistrate Court-Ramankary, by filing a formal complaint, upon
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which cognizance was taken u/s.138 of Negotiable Instruments
Act and instituted C.C.No.61/07. During the trial of the case, the
complainant himself was mounted to the box and gave evidence
as PW1 and Exts.P1 to P6 were marked, from the side of the
complainant. 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 3
months and to pay a compensation of Rs.75,000/- to the
complainant u/s.357(3) of Cr.P.C. and the default sentence was
fixed as 2 months simple imprisonment.
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3. Though an appeal was filed, at the instance of the
revision petitioner/accused, by judgment dated 31.7.2010 in
Crl.A.327/09, the Court of Addl. Sessions Judge (Fast Track-II),
Alleppey, dismissed the appeal, confirming the conviction and
sentence imposed against the revision petitioner. 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
Instruments Act, is approved.
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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 exorbitant and unreasonable and
the same may be set aside and also further submitted that, some
breathing time may be granted to pay the compensation amount.
Having regard to the facts and circumstances involved in the
case, I am of the view that the said submission can be
considered but subject to other relevant inputs 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
11.8.2006, for an amount of Rs.75,000/-. Thus as per the
records and the findings of the courts below, which approved by
this court, a sum of Rs.75,000/-, which belonged to the
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complainant is with the revision petitioner for the last 4 years.
Considering the above settled legal position and the facts
referred above, I am of the view that the sentence of
imprisonment ordered by the court below can be modified and
while granting some time to pay the compensation amount to the
revision petitioner, the amount can be enhanced slightly.
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 court
below is modified and reduced to one day simple imprisonment
ie., till the rising of the court and further directed the revision
petitioner to pay a compensation of Rs.82,000/- u/s.357(3) of
Cr.P.C. to the complainant, within 3 months from today and in
case any default in paying the compensation amount, the revision
petitioner is directed to undergo simple imprisonment for a period
of 2 months. Accordingly, the revision petitioner is directed to
appear before the trial court on 7.12.2010, to receive the
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sentence and to pay the modified 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 the revision petitioner.
The coercive steps if any, pending against the revision petitioner
shall be deferred till 7.12.2010.
Criminal revision petition is disposed of accordingly.
V.K.MOHANAN,
Judge.
ami/