Abhilash Mathew v. State of Kerala and P.J. James

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 5TH AUGUST 2010 / 14TH SRAVANA 1932 Crl.Rev.Pet.No. 2254 of 2010() -----------------------------CRA.289/2007 of SESSIONS COURT,WAYANAD, KALPETTA ST.151/2007 of JUDL. MAGISTRATE OF FIRST CLASS-II, SULTHAN BATHERY .................... REVN. PETITIONER: REVISION PETITIONER/APPELLANT/ACCUSED ---------------------------------------------------------- ABHILASH MATHEW, AGED 30 YEARS, S/O.MATHEW, RESIDING AT OLIKKAL HOUSE, CHETTAPALAM P.O., PULPALLY. BY ADV. SRI.A.V.JAMES SRI.P.DALBI EMMANUEL RESPONDENT(S): RESPONDENTS/COMPLAINANT -------------------------------------- 1. THE STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. P.J.JAMES, AGED 46 YEARS, S/O.JOSEPH, RESIDING AT PALLIPURATH HOUSE, KABANIGIRI POST, PULPALLY, PIN 673 579. R1 BY P.P. SRI C.M.NAZAR. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 05/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## V.K.MOHANAN, J. ---------------------------------------Crl. R.P. No.2254 OF 2010 ---------------------------------------Dated 5th Day of August, 2010 ## ORDER The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the revision petitioner as he is aggrieved by the conviction and sentence imposed against him as per the impugned judgment. 2. The case of the complainant is that an amount of Rs.75,000/- was due to the complainant from the accused and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 18.12.2006 which when presented for encashment, dishonoured as there was no sufficient fund in the account maintained by the accused and the revision petitioner/accused miserably failed to repay the cheque amount in spite of a formal notice caused to issue by him. With the said allegation, the CRL.R.P.2254/10 **:-2-:** complainant approached the Judicial First Class Magistrate-II, Sulthan Bathery by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted S.T.No.151/2007. During the course of trial, the complainant himself mounted to the box and adduced oral evidence as PW1. He has also produced Exts.P1 to P5 as documentary evidence. From the side of the defence, no evidence either oral or documentary was produced. After evaluation of the evidence and the materials on record, the trial court has found that Ext.P1 cheque was issued towards the discharge of a legally enforceable debt that due to the complainant and accordingly, the trial court held that the complainant has succeeded in establishing the allegation against the revision petitioner-accused and found that the revision petitioner-accused is guilty. Consequently, the accused is convicted under section 138 of the N.I.Act. On such conviction, the trial court CRL.R.P.2254/10 **:-3-:** sentenced the revision petitioner-accused to undergo simple imprisonment for a period of 6 months and to pay a sum of Rs.75,000/-, to the complainant as compensation under section 357(3) Cr.P.C. and in default, he is directed to undergo simple imprisonment for a further period of 30 days. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 4.12.2009 in Crl.A.No.289/2007, the court of Sessions Judge, Wayanad, Kalpetta, dismissed the appeal. It is the above judgments of the trial court as well as the lower appellate court challenged in this Crl.R.P. 3. Reiterating the contention taken by the defence during the trial and appellate stages, the learned counsel submitted that the complainant has not established the transaction, execution and issuance of the cheque and therefore, the courts below are absolutely wrong in convicting the revision petitioner-accused imposing CRL.R.P.2254/10 **:-4-:** sentence against him. The trial court as well as the lower appellate court has concurrently found in favour of the complainant and against the revision petitioneraccused. Though the revision petitioner is heard elaborately, nothing is brought out to take a different view by interfering with the concurrent findings of the courts below. All the contentions are based upon the facts and evidence on record which were elaborately considered by the courts below. Therefore, I find no reason to interfere with such concurrent finding of the courts below and accordingly, the conviction recorded by the courts below is confirmed. 4. As this court is not inclined to interfere with the concurrent finding of the courts below, the learned 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 also submitted that a breathing time may CRL.R.P.2254/10 **:-5-:** be granted to the revision petitioner to receive the sentence and to pay the compensation amount. 5. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered favourably. In the present case, the cheque is dated 18.12.2006, that too for an amount of Rs.75,000/-. As per the findings of the courts below which approved by this court, the said amount is belonging to the complainant and the same is with the revision petitioner for the last 3 years. The Apex Court, in its recent decision in **Damodar S.Prabhu v. Sayed Babalal H** (J.T.2010 (4) SC 457), has held that in a case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. In the light of the above settled legal position and in view of the facts and circumstances referred to above, I am of the view that the sentence of imprisonment imposed upon the revision petitioner can be modified and CRL.R.P.2254/10 **:-6-:** reduced to one day, ie., simple imprisonment till the rising of the court and at the same time, while granting some time to pay the compensation amount, the compensation amount can be enhanced slightly. In the result, this Crl.R.P is disposed of confirming the conviction recorded by the trial court as well as the lower appellate court against the revision petitioner for the offence under section 138 of the N.I.Act. Accordingly, the sentence of imprisonment ordered by the courts below is modified and reduced to one day till the rising of the court and the revision petitioner is directed to pay a sum of Rs.85,000/- to the complainant as compensation under section 357(3) Cr.P.C., within three months from today and in case of any default in paying the amount within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for a period of 3 months. The revision petitioner is directed to appear before the trial court on 15.11.2010 to receive the CRL.R.P.2254/10 **:-7-:** sentence and to pay the compensation amount. If there is any default on the part of the revision petitioner in appearing before the trial court as directed above, the trial court is free to take coercive steps against the revision petitioner to secure his presence and to execute the sentence. Coercive step if any taken against the revision petitioner shall be deferred till 15.11.2010. This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- CRL.R.P.2254/10 **:-8-:**