IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2299 of 2010()
1. M.VASU,PROPRIETOR,PALAKKAD AUTO
... Petitioner
Vs
1. CUSTOMERS KURIES(P) LTD.,MAGISTIC
... Respondent
2. STATE OF KERALA,REPRESENTED BY THE
For Petitioner :SRI.M.SREEKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :30/07/2010
O R D E R
V.K.MOHANAN, J.
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Crl. R.P.No.2299 of 2010
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Dated this the 30th day of July, 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 complainant is a private enterprise engaged
in the conduct of curies and the accused was one of
their subscribers and the accused had auctioned the
curie and accepted the curie amount and subsequently
he made default and on settlement of account, the
accused issued a cheque for Rs.34,445/-(Rupees Thirty
four thousand four hundred and forty five only), 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
Crl. R.P.No.2299/2010
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petitioner has committed the offence punishable u/s.138
of Negotiable Instruments Act. With the same
allegation, the complainant approached the Judicial
First Class Magistrate Court-III, Palakkad by filing a
formal complaint, upon which cognizance was taken
u/s.138 of Negotiable Instruments Act and instituted
S.T.No.4014/2005. During the trial of the case, PW1
was examined from the side of the complainant and
Exts.P1 to P5 documents were produced. From the side
of the defence, though no witness was examined,
Ext.D1 was produced and marked. On the basis of the
available materials and evidence, 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
Crl. R.P.No.2299/2010
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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/appellant to undergo
simple imprisonment for 1 month and also ordered to
pay a compensation of Rs.34,445/- to the complainant
u/s.357(3) of Cr.P.C. No default sentence is fixed.
3. Aggrieved by the above order of conviction and
sentence, the revision petitioner had approached the
appellate court by filing an appeal, and by judgment
dated 27.08.2009 in Crl.Appeal No.10/2008, the Court
of Addl. District and Sessions Judge (Adhoc-I), Palakkad
dismissed the appeal confirming the conviction, but
sentence of imprisonment was modified as till raising of
the court. No interference was made with respect to
the order for compensation. It is the above conviction
and sentence challenged in this revision petition.
4. I have heard the learned counsel appearing for
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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.
6. The counsel for the revision petitioner submitted
that the sentence imposed by the courts below is highly
exorbitant and unreasonable. It is also submitted that
some breathing time may be granted to the revision
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petitioner to pay the amount.
7. Having regard to the facts and circumstances
involved in the case, I am of the view that the said
submission can be considered favorably but subject to
the other relevant facts involved in the case. Going by
the records and the findings of the court below, which
approved by this court, a sum of Rs.34,445/- which
belonged to the complainant is with the revision
petitioner for the last 5 years. 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. Considering the above facts and legal
position, I am of the view that, while granting time to
pay the compensation, the amount can be enhanced
slightly.
In the result, this revision petition is disposed of
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confirming the conviction against the revision petitioner
u/s.138 of Negotiable Instruments Act as recorded by
the trial court as well as the lower appellate court.
Accordingly, while confirming the sentence of
imprisonment as ordered by the lower appellate court,
the revision petitioner is directed to pay a sum of
Rs.37,000/- (Rupees Thirty seven thousand only) to the
complainant as compensation u/s.357(3) of Cr.P.C
within 3 months from today and in default he is directed
to undergo simple imprisonment for a period of 1
month. The revision petitioner is free to pay the
compensation amount as ordered by this court either
directly to the complainant or by remitting the same in
the trial court, whichever subjected to the satisfaction
of the trial court. The revision petitioner is directed to
appear before the trial court on 30.10.2010 to receive
the sentence and to pay the compensation. Execution
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of warrant if any shall be differed till 30.10.2010. In
case, of failure on the part of the revision petitioner in
appearing before the court below, 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.
Criminal revision petition is disposed of
accordingly.
Sd/-
V.K.MOHANAN,
Judge.
ss/
//True copy//
P.A to Judge