IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3103 of 2007()
1. SATHEESH KURIAN, AGED 43 YEARS,
... Petitioner
Vs
1. BABU THOMAS, CHAONAL HOUSE,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.SREELAL N.WARRIER
For Respondent :SRI.JOSHI N.THOMAS
The Hon'ble MR. Justice V.K.MOHANAN
Dated :23/09/2010
O R D E R
V.K.MOHANAN, J.
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Crl. R.P.No.3103 of 2007
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Dated this the 23rd 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.1,00,000/- from the complainant
and towards the discharge of the debt due to the complainant, he
issued a cheque dated 15.7.2005 for a sum of Rs.1,00,000/-,
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 Chief
Judl. Magistrate Court-Thodupuzha, by filing a formal complaint,
upon which cognizance was taken u/s.138 of Negotiable
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Instruments Act and instituted C.C.No.564/05 and subsequently,
the case was made over to the Court of Judicial First Class
Magistrate-II, Thodupuzha, wherein the case was renumbered as
S.T.No.23/06. During the trial of the case, the complainant
himself was mounted to the box and gave evidence as PW1 and
Exts.P1 to P5 were marked, from the side of the complainant.
From the side of the defence, Dws.1 to 4 and Exts.D1, D2 and
C1 were marked. 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 3 months and also directed to pay
compensation of Rs.1,05,000/- to the complainant u/s.357(3) of
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Crl. R.P.No.3103 of 2007
Cr.P.C. and the default sentence was fixed as 3 months simple
imprisonment.
3. Though an appeal was filed, at the instance of the
revision petitioner/accused, by judgment dated 25.6.2007 in
Crl.A.332/06, the Court of 3rd Addl. District & Sessions Judge-
Thodupuzha, dismissed the appeal, confirming the conviction
and sentence imposed against the revision petitioner. 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
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
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Crl. R.P.No.3103 of 2007
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 order of
conviction recorded by the courts below, the counsel for the
revision petitioner submitted that, the sentence of imprisonment
ordered by the courts below is unreasonable and exorbitant and
the same may be set aside and the counsel for the revision
petitioner also submitted that, the revision petitioner is ready to
compensate the complainant by paying a compensation amount
which is to be fixed by this court. The learned counsel for the
respondent submitted that, the complainant is very much
interested in getting his amount back but with adequate
compensation.
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
15.7.2005, for an amount of Rs.1,00,000/-. Thus as per the
records and the findings of the courts below, which approved by
this court, a sum of Rs.1,00,000/-, which belonged to the
complainant is with the revision petitioner for the last 5 years.
Having regard to the facts and circumstances involved in the
case and in the light of the submissions made by both side’s
counsels, I am of the view that, the sentence of imprisonment
ordered by the courts below can be set aside and the revision
petitioner can be sentenced to pay fine only.
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, in suppression of the order of sentence for
imprisonment ordered by the courts below, the revision petitioner
is sentenced to pay a fine amount of Rs.1,30,000/-, within one
month from today and in case of any default in paying the fine
amount, the revision petitioner is directed to undergo simple
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imprisonment for 3 months. Accordingly, the revision petitioner is
directed to deposit the fine amount on or before 23.10.2010 in
the trial court. In case any failure on the part of the revision
petitioner in paying the fine 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. On realisation of the fine amount, a sum of
Rs.1,25,000/- shall be paid to the complainant as compensation
u/s.357(1)(b) of Cr.P.C. and the remaining amount shall be paid
to the State Exchequer. The coercive steps if any, pending
against the revision petitioner shall be deferred till 23.10.2010.
Criminal revision petition is disposed of accordingly.
V.K.MOHANAN,
Judge.
ami/