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Kerala High Court
K.V. Shaju vs R.K. Muhammed Frooque on 3 August, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 2179 of 2010()


1. K.V. SHAJU, S/O. KUNJUMON, AGED 38 YEARS
                      ...  Petitioner

                        Vs



1. R.K. MUHAMMED FROOQUE,
                       ...       Respondent

2. STATE OF KERALA, EPRESENTED BY THE

                For Petitioner  :SRI.SABU THOZHUPPADAN

                For Respondent  :PUBLIC PROSECUTOR

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

 Dated :03/08/2010

 O R D E R
                        V.K. MOHANAN, J
                         ----------------------
                   Crl.R.P.No.2179 OF 2010
                   -----------------------------------
           Dated this the 3rd day of August, 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, towards the discharge of a debt due to the

complainant, issued a cheque dated 2.6.1996 for a sum of

Rs.1,50,000/-, which when presented for encashment was

dishonoured, due to the reason that there was no sufficient fund

in the account maintained by the accused and the cheque amount

was not repaid in spite of a formal demand notice and thus the

revision petitioner has committed the offence punishable under

section 138 of Negotiable Instruments Act. With the said

allegation, the complainant approached Judicial First Class

Magistrate Court, Chavakkad, by filing a formal complaint, upon

which cognizance was taken u/s.138 of Negotiable instruments

Crl.R.P. No.2179/10 2

Act and instituted C.C.No.312/1996 of Judicial First Class

Magistrate Court, Chavakkad. During the trial of the case,

complainant himself was examined as PW1 and Exts.P1 to P10

were marked. From the side of defence Dws.1 to 4 were

examined and produced Ext.D1 to D7. 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 her debt due to

the complainant. Thus accordingly, the court held 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

accused/revision petitioner to undergo simple imprisonment for

one months and also sentenced to pay fine of Rs.5,000/-. The

default sentence is fixed as one month imprisonment.

3. In appeal at the instance of revision petitioner/ accused,

by judgment dated 29.7.2003 in Criminal Appeal No.40/01, the

court of III Additional Sessions Judge (Adhoc) Fast Track Court – I,

Mavelikkara, while confirming the conviction, the sentence is

Crl.R.P. No.2179/10 3

modified and reduced the same to simple imprisonment for a

term of one month and the petitioner is further directed to pay a

compensation of Rs.50,000/- to the complainant and also fixed

the default sentence as simple imprisonment for one month. It is

the above conviction and sentence, challenged in this revision

petition.

4. I have head 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. The counsel for the

revision petitioner further submitted that the courts below has

committed wrong in convicting the revision petitioner. 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.

Crl.R.P. No.2179/10 4

6. As this court is not inclined to interfere with the

conviction recorded by the court below, learned counsel for the

revision petitioner submitted that the sentence of imprisonment

ordered by the court below is highly unreasonable and exorbitant

and breathing time may be granted to the petitioner to pay the

amount. Having regard to the facts and circumstances involved

in the case, I am of the view that the said submission can be

considered favourably.

7. As per the records and as per the findings of courts

below, which approved by this court, the cheque is dated

2.6.1996 for an amount of Rs.1,50,000/- which belongs to the

complainant and thus the said amount is with the revision

petitioner for the last fourteen years. Learned counsel for the

revision petitioner submitted that the parties are relatives and

the entire dispute has been settled But there is no evidence or

materials to accept the above contention. The apex court in the

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. However, considering the

Crl.R.P. No.2179/10 5

above facts and settled legal position of law, the sentence of

imprisonment ordered by court below can be reduced and some

time can be granted for payment but subjected slight

enhancement of the amount.

In the result, this revision petition is disposed of confirming

the the conviction against revision petitioner u/s.138 of

Negotiable Instrument Act, as recorded by the courts below.

Accordingly the sentence of imprisonment ordered by court below

is modified and reduced to one day simple imprisonment, ie., till

rising of court. The revision petitioner is further directed to pay a

sum of Rs.2,00,000/- as compensation to the complainant within

three month from today u/s.357(3) Cr.P.C and in case of any

failure in paying the amount within the above stipulated time, he

is directed to undergo simple imprisonment for a period of three

months. Accordingly the revision petitioner is directed to appear

before the trial court on 3.11.2010 to receive the sentence and

pay the above compensation amount. The revision petitioner is

free to pay compensation either directly to the complainant or by

remitting the same in the trial court, whichever subject to the

satisfaction of the learned Magistrate. In case of any failure on

Crl.R.P. No.2179/10 6

the part of the revision petitioner in appearing before the court

below on the above date and making the payment, the trial court

is free to take coercive steps to secure the presence of the

petitioner and to execute the sentence and for realisation of the

compensation amount.

This criminal revision petition is disposed of accordingly.

V.K. MOHANAN,
JUDGE.

Sou.


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