IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1959 of 2010()
1. THOMAS K.GEORGE , S/O.GEORGE
... Petitioner
Vs
1. STATE OF KERALA, REP BY
... Respondent
2. P.GANAPATHY
For Petitioner :SRI.V.RAJENDRAN (PERUMBAVOOR)
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :08/07/2010
O R D E R
V.K.MOHANAN, J.
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Crl. R.P.No.1959of 2010
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Dated this the 8th day of July, 2010.
O R D E R
This revision petition is preferred by the accused in a
prosecution for an offence u/s.138 of Negotiable Instruments
Act, 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 13.11.2007 for a sum of
Rs.3,00,000/- and another cheque dated 13.11.2007 for a sum
of Rs.1,50,000/- and when the above cheques presented for
encashment, the same were dishonoured and the cheque
amount was not repaid inspite of formal demand notice and thus
the revision petitioner has committed the offence punishable
u/s.138 of Negotiable Instruments Act. With the same
allegation, the complainant approached the Addl. Chief Judicial
Magistrate Court, Ernakulam, by filing a formal complaint, upon
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which cognizance was taken u/s.138 of Negotiable Instruments
Act and instituted C.C.No.2101/07. During the trial of the case,
PW1, the complainant himself, was examined from the side of
the complainant and Exts.P1 to P6 were marked. From the side
of the defence, one witness was examined as DW1 and one
document has produced which was marked as Ext.D1.
3. On conviction, the trial court sentenced the revision
petitioner to undergo simple imprisonment for 1 year and also
directed to pay a sum of Rs.4,75,000/- as compensation to the
complainant u/s.357(3) of Cr.P.C. and the default sentence is
fixed as 6 months simple imprisonment.
4. In appeal, by judgment dated 3.4.2010 in
Crl.A.No.596/09 the Court of Addl. Sessions Judge (Ad hoc-II),
Ernakulam, while confirming the conviction of the revision
petitioner u/s.138 of Negotiable Instruments Act, the sentence is
modified and reduced. Accordingly, the revision petitioner is
sentenced to undergo simple imprisonment till rising of the court
and to pay a fine of Rs.4,50,000/-. It is also directed to pay the
Crl. R.P.No.1959of 2010
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fine within one month from the date of the judgment of the lower
appellate court and in default in paying the amount, directed the
revision petitioner to undergo simple imprisonment for 3 months.
It is also ordered that on realisation of the fine amount, the
entire amount shall be paid to the complainant u/s.357(1) of
Cr.P.C. It is the above conviction and sentence challenged int
his revision petition.
5. I have heard the learned counsel appearing for the
revision petitioner and also perused the judgments of the courts
below.
6. 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
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Negotiable Instruments Act, is approved.
7. The counsel for the revision petitioner submitted that,
some breathing time may be granted to the revision petitioner to
pay the fine amount and to receive the sentence ordered by the
lower appellate court. Having regard to the facts and
circumstances involved in the case, I am of the view that the
said submission can be considered favourably.
8. As per the records and findings of the courts below and
approved by this court an amount of Rs.4,50,000/-, which
belong to the complainant is with the revision petitioner for the
last 3 years. When the trial court ordered compensation, the
amount was fixed as Rs.4,75,000/-, whereas the lower appellate
court when the amount of compensation ordered u/s.357(3) of
Cr.P.C., converted it into compensation u/s.357(1)(b) of Cr.P.C.
and the amount is reduced and fixed as only Rs.4,50,000/-,
which is equivalent to the cheque amount. Now the revision
petitioner seeks 6 months time to pay the amount. The apex
court in a recent decision reported in Damodar S.Prabhu V.
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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. Thus
considering the above legal position and other relevant factual
inputs, I am of the view that while granting 6 months time to the
revision petitioner, the fine amount can be enhanced to the tune
of Rs.4,85,000/-.
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, while confirming the sentence of imprisonment, as
modified and ordered by the lower appellate court, the sentence
of fine is modified and accordingly the revision petitioner is
sentenced to pay a fine of Rs.4,85,000/-, which shall be paid
within 6 months from today and in default in paying the fine
amount, the revision petitioner is directed to undergo simple
imprisonment for 6 months. On realisation of the fine amount, a
sum of Rs.4,80,000/- shall be paid to the complainant u/s.357(1)
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(b) of Cr.P.C. and the remaining amount shall be paid to the
State Exchequer. Accordingly, the revision petitioner is directed
to appear before the trial court on 31.12.2010 to receive the
sentence of imprisonment and to deposit the fine amount. In
case any failure on the part of the revision petitioner in
appearing before the court below as directed above and in
depositing 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.
Criminal revision petition is disposed of accordingly.
V.K.MOHANAN,
Judge.
ami/