IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1613 of 2010()
1. RAJAN.M
... Petitioner
Vs
1. N.VARDHANAN
... Respondent
For Petitioner :SRI.T.A.UNNIKRISHNAN
For Respondent :SRI.G.SUDHEER
The Hon'ble MR. Justice V.K.MOHANAN
Dated :25/06/2010
O R D E R
V.K.MOHANAN, J.
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Crl. R.P.No.1613 of 2010
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Dated this the 25th day of June, 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 21.12.2004 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 initially approached the Judicial First Class
Magistrate Court-II, Neyyattinkara, by filing a formal complaint,
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upon which cognizance was taken u/s.138 of Negotiable
Instruments Act and instituted S.T.No.598/05. Thereafter the
case was transferred to the Court of Judicial First Class
Magistrate-V, Neyyattinkara, where it re-numbered as
C.C.No.478/05 and during the course of the trial, PW1 was
examined from the side of the complainant and Exts.P1 to P5
were marked. No evidence either oral or documentary was
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 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 revision petitioner to undergo simple imprisonment for 4
months and to pay a sum of Rs.52,000/- to PW1 as
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compensation u/s.357(3) of Cr.P.C. The default sentence is fixed
as 2 months imprisonment.
3. In appeal, at the instance of the revision petitioner/
accused, by judgment dated 29.7.2009 in Crl.A.663/07, the
appeal is allowed in part only, by the Court of Addl. Sessions
Judge-II, Thiruvananthapuram, confirming the conviction and the
sentence of simple imprisonment is reduced to till rising of the
court and while enhancing the compensation amount to the tune
of Rs.55,000/- and the default sentence is also enhanced and
fixed as 4 months simple imprisonment. There was also a
direction to the revision petitioner to appear before the lower
court on 30.9.2009 to receive the modified 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
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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.
6. The learned counsel for the revision petitioner submitted
that, a lenient view may be taken in the matter of sentence and
some breathing time may be granted to the revision petitioner to
pay the compensation amount. I am of the view that the said
submission can be considered favourably but subject to other
relevant materials 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
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that, in the case of dishonour of cheques, the compensatory
aspect of the remedy should be given priority over the punitive
aspects. In the present case, the cheque in question is dated
21.12.2004, 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/- is in the hands of the revision
petitioner for the last 5 = years. Considering the above facts
and legal position, I am of the view that, while granting time to
the revision petitioner for paying the compensation amount, the
amount can be modified slightly, though the courts below have
made some increase in the cheque amount and the revision
petitioner can be granted 3 months time 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, the sentence of imprisonment is maintained as it
has been modified by the lower appellate court and he is directed
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to pay a sum of Rs.57,500/- to the complainant as compensation
u/s.357(3) of Cr.P.C. and in case of default in paying the
compensation, the revision petitioner is directed to undergo
simple imprisonment for 6 months. Accordingly, the revision
petitioner is directed to appear before the trial court on 27.9.2010
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 making the
deposit of 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 and for realisation of the compensation amount.
Criminal revision petition is disposed of accordingly.
V.K.MOHANAN,
Judge.
ami/