IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2341 of 2010()
1. THOMAS OOMMEN,
... Petitioner
Vs
1. DEEPU M.TOM,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.AJITH MURALI
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :04/08/2010
O R D E R
V.K.MOHANAN,J
---------------------
Crl.R.P.No.2341 of 2010
------------------------------------
Dated this the 4th day of August,2010
O R D E R
The accused in a prosecution for the offence under Section
138 of the Negotiable Instruments Act, 1881 (for short ‘the
N.I.Act’) approached this Court by preferring the above revision
petition challenging his conviction and sentence, imposed as per
judgments of the trial court as well as the lower appellate court.
2. The case of the respondent/complainant is that the
accused/revision petitioner, towards the discharge of a debt due
to the complainant, issued a cheque dated 18.11.2005 for a sum
of Rs.1,75,000/- which, when presented for encashment, was
dishonoured for want of sufficinet fund in the account maintained
by the revision petitioner and the petitioner failed to pay the
cheque amount, even though he was requested for the same by
issuing a statutory notice. With the said allegation, the
complainant approached the Judicial First Class Magistrate -I,
Pathanamthitta whereupon C.C.No.747/2006 was instituted
taking cognisance for the offence under Section 138 of the
N.I.Act. During the trial of the above case, the
respondent/complainant adduced his evidence consisting of the
Crl.R.P.No.2341 of 2010 2
documentary evidence such as Exts.P1 to P6 and the oral
evidence of himself as PW1. 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 courts held that,
the complainant has established the case against the revision
petitioner/accused and consequently, found that the accused is
guilty and thus, he is convicted under Section 138 of the N.I.Act.
On such conviction, the trial court sentenced the revision
petitioner to undergo simple imprisonment for a period of 6
months and also directed to pay a fine of Rs.1,75,000/- and the
default sentence is fixed as 3 months simple imprisonment. It is
also ordered that on realisation of fine amount, it shall be paid to
the complainant u/s.357(1)(b) of Cr.P.C.
3. Though an appeal was filed against the above conviction
and sentence, by the revision petitioner/accused, as per judgment
dated 10.06.2010 in Crl.Appeal No.282/2008, the Court of Addl.
Sessions & District Fast Track (ADHOC) Court-II, Pathanamthitta
dismissed the appeal confirming the conviction and sentence
Crl.R.P.No.2341 of 2010 3
ordered by the trial court under Section 138 of the Negotiable
Instruments Act.
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
complaiant 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. As this Court is not inclined to interfere with the
conviction the counsel for the revision petitioner submitted that,
the substantial sentence ordered by the courts below is
unreasonable and exorbitant and some breathing time may be
granted to the petitioner to deposit the amount. I am of the view
that the said submission can be considered but subject to other
relevant materials and circumstances involved in the case.
Crl.R.P.No.2341 of 2010 4
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
aspects. In the rpesent case, the cheque in question is dated
18.11.2005, for an amount of Rs.1,75,000/-. Thus as per the
records and the findings of the courts below, which approved by
this Court, a sum of Rs.1,75,000/-, which belonged to the
complainant, is in the hands of the revision petitioner for the last
4 years. Considering the above facts and legal position, I am of
the view that, the sentence of imprisonment can be reduced to
one day at the same time the fine amount can be enhanced
slightly.
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 ordered by the courts
below it is reduced that one day simple imprisonment, i.e., till
rising of the court. The revision petitioner is also sentenced to
pay fine of Rs.2,05,000/- within three months from today and in
case of default in paying the fine within the stipulated time the
Crl.R.P.No.2341 of 2010 5
revision petitioner is directed to undergo simple imprisonment for
3 months. On realisation of the fine amount a sum of
Rs.2,00,000/-, shall be paid to the complainant u/s.357(1)(b) of
Cr.P.C. The revision petitioner is directed to appear before the
trial court on 4.11.2010 to receive the sentence and deposit the
fine amount in the trial court on or before 4.11.2010. In case any
failure on the part of the revision petitioner in appearing before
the court below as directed above and in making the payment of
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.
pm