Antoney Joseph v. C.H.Krishnan & State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 4TH AUGUST 2010 / 13TH SRAVANA 1932 Crl.Rev.Pet.No. 2335 of 2010() -----------------------------CRA.134/2009 of SESSIONS COURT, KASARAGOD CC.1305/2007 of JUDL.MAGISTRATE OF FIRST CLASS-I, HOSDRUG .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- ANTONEY JOSEPH, AGED 45 YEARS, S/O.JOSEPH, ADVOCATE, HOSDURG, NAVARANG BUILDING, KANHANGAD POST, HOSDURG TALUK. BY ADV. SRI.T.B.SHAJIMON SMT.GOVINDU P.RENUKADEVI RESPONDENT(S): COMPLAINANT/STATE -------------------------------- 1. C.H.KRISHNAN, AGED 75 YEARS, S/O.KOTTAN, R/AT.KOOTTAKKALAM, KODOTH VILLAGE, PADIMARUTHU P.O., ANANDASRAMAM (VIA, HOSDURG TALUK-671121. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.VENUGOPAL.M.R. - R3 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## V.K.MOHANAN,J --------------------Crl.R.P.No.2335 of 2010 -----------------------------------Dated this the 4[th ] 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, a case was pending against the brother of the accused as C.C.No.621/2001 which was disposed, after a full pledged trial, whereby the accused therein was convicted and finally the said conviction was confirmed by the higher courts and thereafter, a settlement was arrived between the complainant and the accused therein and as part of the said settlement, the accused herein undertook to pay the amount which was due from the brother of the accused herein to the complainant and towards the discharhge of such liability the accused herein issued a cheque dated 26.3.2007 for a sum of Rs.60,000/- which, when presented for encashment, was dishonoured for want of Crl.R.P.No.2335 of 2010 2 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 Court -I, Hosdurg whereupon C.C.No.1305/2007 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 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 one Crl.R.P.No.2335 of 2010 3 month and to pay compensation of Rs.60,000/- to PW1 under Section 357(3) of Cr.P.C. and the default sentence is fixed as 15 days simple imprisonment. 3. Though an appeal was filed against the above conviction and sentence, by the revision petitioner/accused, as per judgment dated 01.07.2010 in Crl.Appeal No.134/2009 in the Court of Sessions, Kasargod allowed the appeal only part and thus while confirming the conviction and sentence of imprisonment reduced to one day that till the rising of the court. The compensation amount ordered by the trial court is confirmed and the default sentence is fixed as 1 month simple imprisonment. It is also directed the revision petitioner to appear before the trial court on 5.8.2010 to pay the compensation and also to undergo the imprisonment. It is the above conviction and sentence 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. Reiterating the stand taken by the defence during the Crl.R.P.No.2335 of 2010 4 trial as well as the appellate stage, the learned counsel for the revision petitioner submitted that the complainant has not established the transaction, execution and issuance of the cheque. The above submission is purely on the basis of the facts, evidence and materials on record which are already considered in detail by the trial court as well as the lower appellate court. The petitioner miserably failed to make out a case so as to interfere with such concurrent findings arrived on by the courts below. 6. The learned counsel for the revision petitioner vehementally submitted that the complainant has miserably failed to show that a legally enforceable debt was due to the complainant from the accused. According to the learned counsel, the amount was due, not from the present revision petitioner but the brother of the revision petitioner, which is the admitted case of the complainant. I am unable to accept the above argument. As indicated earlier, the case in which brother of the revision petitioner was involved has been settled between the parties and as part of the said settlement the revision petitioner had undertook to pay the amount to the complainant and the liability Crl.R.P.No.2335 of 2010 5 thus undertaken is the one, which can be enforceable. Therefore, I find no illegality with the findings of the courts below. 7. As this Court is not inclined to interfere with the conviction recorded by the courts below, the counsel for the revision petitioner submitted that, the revision petitioner being an Advocate, the sentence of imprisonment may be set aside and some breathing time may be granted to the petitioner to pay the amount by way of fine. I am of the view that the said submission can be considered but subject to other relevant materials and circumstances involved in the case. 8. 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 present case, the cheque in question is dated 26.3.2007, for an amount of Rs.60,000/-. Thus as per the records and the findings of the courts below, which approved by this Court, a sum of Rs.60,000/-, which belonged to the complainant, is in the hands of the revision petitioner for the last Crl.R.P.No.2335 of 2010 6 3 years. Considering the above facts and legal position, particularly the fact that, the revision petitioner is an Advocate practising in Hosdurg Courts, I am of the view that the sentence of imprisonment ordered against the revision petitioner can be set aside especially when the imprisonment is not mandatory in terms of Section 138 of the N.I. Act. Thus, the sentence of imprisonment ordered by the courts below can be set aside and instead of that, the revision petitioner can be sentenced to pay fine and fine amount can be fixed taking into the fact that the cheque amount is with the revision petitioner for the last 3 years. 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 both trial court as well as the lower appellate court. Accordingly, the sentence of imprisonemnt ordered by the courts below is set aside and the revision petitioner is sentenced to pay a fine of Rs.75,000/within three months from today and in case of default in paying the fine within the stipulated time the revision petitioner is directed to undergo simple imprisonment for 1 month. On realisation of the fine amount a sum of Rs.72,500/-, shall be paid Crl.R.P.No.2335 of 2010 7 to the complainant as compensation u/s.357(1)(b) of Cr.P.C. The revision petitioner is directed to 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 making the payment of fine amount in time, 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