A.M.M Basheer S/O Moideenkunhi Bari v. State of Kerala and M/S Five Star Metals Pvt. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 2ND JULY 2010 / 11TH ASHADHA 1932 Crl.Rev.Pet.No. 1481 of 2010() -----------------------------CRA.262/2004 of ADDL. SESSIONS JUDGE, FAST TRACK COURT-I, PALAKKAD CC.197/2000 of CHIEF JUDICIAL MAGISTRATE COURT, PALAKKAD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- A.M.M BASHEER,S/O.MOIDEENKUNHI BARI, P.W.D.CONTRACTOR,PULAVAR LINE,METTUPALAYAM STREET, PALAKKAD. BY ADV. SRI.P.R.VENKETESH RESPONDENT(S): COMPLAINANT -------------------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR. 2. M/S FIVE STAR METALS PVT.LTD.,PALLAVUR, REPRESENTED BY ITS MANAGING DIRECTOR,A.K.NARAYANAN S/O.KANNANKUTTY MANNADIAR. BY P.P.SRI.VENUGOPAL.M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J.** **----------------------------Crl.R.P.No.1481 of 2010 --------------------------------Dated this the 2[nd] day of July 2010** ## **O R D E R** The accused in a prosecution for an offence u/s.138 of the Negotiable Instruments Act is the revision petitioner, as he is aggrieved by the order of conviction and sentence imposed by the courts below. 2. The case of the complainant is that towards the sale of granite metal produced by the complainant company and in discharge of the liability arise out of the purchase, the accused have issued a cheque dated 31.3.2000 for an amount of Rs.1,25,000/- and another cheque with the same date for an amount of Rs.1,00,000/- and when those Crl.R.P.No.1481 of 2010 : 2 : cheques were presented for encashment, dishonoured as there was no sufficient fund in the account maintained by the accused. Though a formal demand notice was sent demanding to repay the cheques amount, no amount was paid and thus the revision petitioner has committed the offence punishable u/s.138 of the Negotiable Instruments Act. With the said allegation, the complainant approached the Chief Judicial Magistrate, Palakkad by filing a formal complaint, upon which cognizance was taken u/s.138 of the Negotiable Instruments Act and instituted C.C.No.197/2000. During the course of the trial PWs.1 and 2 were examined from the side of the complainant and produced Exts.P1 to P7 documentary evidences. No evidence either oral or documentary 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 Crl.R.P.No.1481 of 2010 : 3 : due to the complainant. Thus accordingly the court found that, the complainant has established the case against the accused/revision petitioner and consequently found 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/accused to undergo simple imprisonment for 6 months and to pay a fine of Rs.2,50,000/- to the complainant as compensation and the default sentence is fixed as 6 months simple imprisonment. 3. Challenging the above conviction and sentence, though an appeal was filed by the revision petitioner, by judgment dated 27.4.2007 in Crl.A.No.262/2004, the Court of Addl.Sessions Judge, Fast Track-I, Palakkad allowed the appeal only in part and while confirming the conviction and the sentence of imprisonment, default sentence is reduced to 3 months simple imprisonment. It is the above conviction and sentence challenged in this appeal. Crl.R.P.No.1481 of 2010 : 4 : 4. 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 was endorsed by the courts below against the revision petitioner u/s.138 of the Negotiable Instruments Act. 5. The learned counsel for the revision petitioner submitted that a breathing time may be granted to the revision petitioner to pay the compensation amount. The said submission can be considered favourably but subject to other facts and circumstances involved in the case. As per the findings of the courts below, which approved by this Court the two cheques involved in this case are pertaining to the year 2000. Thus, a total sum of Rs.2,25,000/- which Crl.R.P.No.1481 of 2010 : 5 : belonging to the complainant is with the revision petitioner for the last 10 years. But the courts below now ordered only a sum of Rs.2,50,000/- as compensation. The appellate court disposed of the Crl.Appeal on 27.4.2007 thereafter also 3 years are over. The Apex Court in the Decision in **Damodar.S.Prabhu v. Sayed Babalal.H** [J.T. 2010 (4) SC 457] has held that in the case of dishonour of cheques, the compensatory aspect of the remedy shall be given preference than the punitive aspect. Therefore considering the entire facts and circumstances involved in the case and the legal position as on today, I am of the view that while granting some time to make the payment, the amount can be enhanced slightly and accordingly, sentence of imprisonment can be reduced and the revision petitioner can be directed to pay a sum of Rs.2,75,000/- as compensation to the complainant under Sec.357(3) of Cr.P.C. Crl.R.P.No.1481 of 2010 : 6 : In the result, this revision petition is disposed of confirming the conviction of the revision petitioner under Sec.138 of the N.I.Act as recorded by the court below. Accordingly, the sentence of imprisonment imposed against the revision petitioner, as modified and fixed by the lower appellate court, is reduced from 3 months imprisonment to one day ie; till the rising of the court and the revision petitioner is directed to pay a sum of Rs.2,75,000/- to the complainant as compensation under Sec.357(3) of Cr.P.C. and in case of failure in paying the compensation, the revision petitioner is directed to undergo simple imprisonment for a period of 6 months. Accordingly, the revision petitioner is directed to appear before the trial court on **4[th] October, 2010** to receive the sentence and to pay the compensation amount as directed by this court. In case any failure on the part of the revision petitioner in appearing before the court below as directed above and in making the deposit of compensation amount, the trial court Crl.R.P.No.1481 of 2010 **==> picture [22 x 10] intentionally omitted <==** is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence awarded against the revision petitioner. The coercive steps, if any, taken against the petitioner shall be kept in abeyance till 4.10.2010. ## **V.K.MOHANAN, JUDGE.** Jvt