IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2607 of 2010()
1. E.K.KRISHNANKUTTY (RTD.),
... Petitioner
Vs
1. THE STATE OF KERALA,
... Respondent
2. JOY RAJ, S/O.ARUMALNAYAKOM,
For Petitioner :SRI.SASTHAMANGALAM S. AJITHKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :03/09/2010
O R D E R
V.K.MOHANAN, J.
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Crl. R.P.No.2607 of 2010
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Dated this the 3rd 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 owed a sum of Rs.50,000/- from the complainant and
issued a cheque dated 25.2.2002 for Rs.50,000/-, 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-VII, Thiruvananthapuram, by filing a formal
complaint, upon which cognizance was taken u/s.138 of
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Negotiable Instruments Act and instituted S.T.No.916/06. During
the trial of the case, PW1, the complainant himself was examined
from the side of the complainant and Exts.P1 to P5 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 5 months and to pay a fine of Rs.50,000/-
u/s.138 of NI Act, failing which the revision petitioner was
directed to undergo simple imprisonment for 3 months. It is also
ordered that if the fine amount is realised the same shall be paid
to the complainant as compensation u/s.357(1)(b) of Cr.P.C.
3. Though an appeal was filed, at the instance of the
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revision petitioner/accused, by judgment dated 16.6.2010 in
Crl.A.479/07, the Court of Sessions Judge, Thiruvananthapuram,
allowed the appeal only in part and while confirming the
conviction, sentence imposed against the revision petitioner, is
modified and reduced to one day simple imprisonment ie., till the
rising of the court and accordingly directed the revision petitioner
to pay a sum of Rs.50,000/- as fine and in default to undergo
simple imprisonment for 3 months. It is also ordered that on
realisation of the fine amount, the same shall be given to the
complainant as compensation u/s.357(1)(b) of Cr.P.C. Thus the
revision petitioner is directed to appear before the trial court on
31.8.2010 to receive the sentence. 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
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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 conviction
recorded by the courts below, the learned counsel for the
revision petitioner submitted that some breathing time may be
granted to pay the fine amount and further submitted that the
revision petitioner may be permitted to pay the compensation
amount directly to the complainant, instead of imposing fine
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 facts 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
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aspect of the remedy should be given priority over the punitive
aspects. In the present case, the cheque in question is dated
25.2.2002, that too for an amount of Rs.50,000/-. Thus as per
the records and the findings of the courts below, which approved
by this court, a sum of Rs.50,000/- which belonged to the
complainant is in the hands of the revision petitioner for the last 8
years. Considering the above facts and legal position, I am of
the view that the revision petitioner can be granted 3 months time
to pay the fine amount but subject to slight enhancement with
respect to the fine amount, since the cheque amount is due to
the complainant atleast from 25.2.2002 onwards.
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 as modified and
refixed by the appellate court, is confirmed. Accordingly, the
revision petitioner is directed to pay a sum of Rs.62,500/- to the
complainant as compensation u/s.357(3) of Cr.P.C. Thus, the
revision petitioner is directed to appear before the trial court on
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3.12.2010, to receive the sentence of imprisonment and to pay
the amount of compensation. The revision petitioner is free to
pay the compensation amount either directly to the complainant
or remitting the same in the court below, which ever subject to
the satisfaction of the learned Magistrate. In case any failure on
the part of the revision petitioner in appearing before the court
below as directed above and in making the payment of fine
amount, the trial court is free to take coercive steps to secure the
presence of the revision petitioner and to execute the sentence
and the compensation awarded against the revision petitioner.
The coercive steps if any, pending against the revision petitioner
shall be deferred till 3.12.2010.
Criminal revision petition is disposed of accordingly.
V.K.MOHANAN,
Judge.
ami/