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
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Crl.R.P.No.2179 OF 2010
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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.
