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Kerala High Court
Thomas Oommen vs Deepu M.Tom on 4 August, 2010
       

  

  

 
 
  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


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