High Court Kerala High Court

G.Gopalakrishnan vs State Of Kerala on 24 September, 2010

Kerala High Court
G.Gopalakrishnan vs State Of Kerala on 24 September, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 2625 of 2010()


1. G.GOPALAKRISHNAN, S/O.N.GOVINDAN,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA, REPRESENTED BY PUBLIC
                       ...       Respondent

2. M.A.HAMEED, S/O.MOHAMMED SHERIF,

                For Petitioner  :SRI.K.P.SUJESH KUMAR

                For Respondent  : No Appearance

The Hon'ble MR. Justice V.K.MOHANAN

 Dated :24/09/2010

 O R D E R
                        V.K.MOHANAN, J.
                      -------------------------------
                    Crl. R.P.No.2625 of 2010
                      -------------------------------
          Dated this the 24th 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.50,000/- and towards the

discharge of the said liability, the accused issued a cheque dated

29.4.2002 for a sum of 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-

V, (Special Court for Mark list cases), Thiruvananthapuram, by

filing a formal complaint, upon which cognizance was taken

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u/s.138 of Negotiable Instruments Act and instituted

C.C.No.287/03. 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 4

months and also ordered the revision petitioner, to pay a sum of

Rs.50,000/- to the complainant as compensation u/s.357(3) of

Cr.P.C., which on deposit in court shall be given to the

complainant, failing which the revision petitioner was directed to

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undergo simple imprisonment for 1 month.

3. Though an appeal was filed, at the instance of the

revision petitioner/accused, by judgment dated 22.4.2010 in

Crl.A.696/04, the Court of Addl. Sessions Judge, Fast Track

Court-III, Thiruvananthapuram, allowed the appeal only in part,

confirming the conviction but the sentence imposed against the

accused is modified and reduced to till the rising of the court and

sentenced to pay compensation of Rs.50,000/- to the

complainant u/s.357(3) of Cr.P.C. and in default to undergo

simple imprisonment for 1 month. It is also ordered that the

revision petitioner shall appear before the trial court on 26.6.2010

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

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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.

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 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 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

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aspects. In the present case, the cheque in question is dated

29.4.2002, 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 settled legal position, I

am of the view that the sentence of imprisonment ordered

against the revision petitioner can be maintained and some time

can be granted to the revision petitioner 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, while confirming the sentence of imprisonment

ordered by the appellate court and also the direction to pay the

compensation amount, the revision petitioner is granted 45 days

time to pay the compensation amount and the default sentence

fixed by the lower appellate court will be attracted only when the

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revision petitioner makes any failure in paying the compensation

amount within 45 days from today. Accordingly, the revision

petitioner is directed to appear before the trial court on

8.11.2010, to receive the sentence of imprisonment and 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 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 execution of warrant if any, pending against the revision

petitioner shall be deferred till 8.11.2010.

Criminal revision petition is disposed of accordingly.

V.K.MOHANAN,
Judge.

ami/