IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2989 of 2010()
1. V.C.SALIM, AGED 39 YEARS,
... Petitioner
Vs
1. V.K. MOHAMMED KUNJI,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.NAGARAJ NARAYANAN
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :11/10/2010
O R D E R
V.K.MOHANAN, J.
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Crl.R.P.No.2989 of 2010
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Dated this the 11th day of October 2010
O R D E R
This revision petition is preferred by the accused in a
prosecution for an offence punishable under Sec.138 of the
Negotiable Instruments Act, as he is aggrieved by the
conviction and sentence ordered by the courts below.
2. The case of the complainant is that the
accused/revision petitioner borrowed a sum of Rs.30,000/-
from the complainant and towards the discharge of the debt
due to the complainant, he issued a cheque dated 19.7.2005
for a sum of Rs.90,000/-, 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
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punishable u/s.138 of the Negotiable Instruments Act. With
the said allegation, the complainant approached the Judl.
First Class Magistrate Court, Chavakkad, by filing a formal
complaint, upon which cognizance was taken u/s.138 of the
Negotiable Instruments Act and instituted
C.C.No.967/2005. During the trial of the case, the
complainant himself was examined as PW1 and Exts.P1 to
P6 were marked. No evidence 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 found
that, the complainant has established the case against the
accused/ revision petitioner and consequently held that the
accused is guilty and thus convicted him u/s.138 of the
Negotiable Instruments Act. On such conviction, the trial
court sentenced the revision petitioner to undergo simple
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imprisonment for a period of three months and to pay a
compensation of Rs.90,000/- to the complainant and the
default sentence is fixed as three months simple
imprisonment.
3. Though an appeal was filed, at the instance of the
revision petitioner/accused, by judgment dated 6.7.2010 in
Crl.A.No.913/2007, the Court of Sessions Judge, Thrissur
allowed the appeal only in part, and while confirming the
conviction, the substantial sentence is modified and reduced
to imprisonment till the rising of the court. It is the above
conviction and sentence are 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. The learned counsel for the revision petitioner
submitted that the complainant who was examined as PW1
was not cross examined and therefore the matter may be
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remitted back to the trial court for cross examining PW1. I
am unable to sustain the above contention, since the trial
court has observed that though PW1 was available for cross
examination, he was not cross examined. It is also relevant
to note that no steps were taken by the revision petitioner
to recall the witnesses for the purpose of cross examination
at any point of time before the disposal of the matter by the
trial court. It is also relevant to note that the complainant
has filed a suit against the revision petitioner and he had
obtained a decree in his favour and towards the execution
of the decree he had attached the property of the revision
petitioner. So the liability of the revision petitioner is
established and there is laches on the part of the revision
petitioner in not cross examining the complainant at
appropriate time and there is sheer negligence in taking
any effective steps for cross examining PW1. Therefore, I
am of the view that it is illegal and improper to remit the
matter back to court below at this stage.
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6. As this court is not inclined to interfere with the
order of conviction recorded by the courts below, the
learned counsel for the revision petitioner submitted that
the sentence of imprisonment ordered by the court below is
unreasonable and exorbitant and it requires reconsideration
and some breathing time be granted to pay the
compensation amount.
7. Having regard to the facts and circumstances
involved in the case, I am of the view that the said
submission can be considered positively keeping in mind
that the cheque in question pertaining to the year 2005.
The Apex Court in the decision 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 light of the above settled legal position and
the facts referred above, I am of the view that the sentence
of imprisonment ordered by the court below can be
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modified and while granting some time to the revision
petitioner to pay the compensation amount, the amount can
be enhanced slightly.
In the result, this revision petition is disposed of
confirming the conviction of the revision petitioner u/s.138
of the Negotiable Instruments Act as recorded by the courts
below. Accordingly, while confirming the sentence of
imprisonment as modified and fixed by the appellate court,
and confirming the order to pay compensation and also the
default sentence, the compensation amount is enhanced as
95,000/-, which shall be paid within three months from
today. Accordingly the revision petitioner is directed to
appear before the trial court on 11th January, 2011 to
receive the sentence and to pay the revised compensation
amount. If there is any failure on the part of the revision
petitioner in appearing before the court below and paying
the compensation amount, the trial court is free to take
coercive steps to secure the presence of the revision
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petitioner and to execute the sentence. The coercive steps
if any, pending against the revision petitioner shall be
deferred till 11.1.2011.
Criminal revision petition is disposed of
accordingly.
V.K.MOHANAN, JUDGE.
Jvt