Balanarayanan v. Radhakrishnan and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE V.K.MOHANAN** **THURSDAY, THE 15TH JULY 2010 / 24TH ASHADHA 1932** **Crl.Rev.Pet.No. 2063 of 2010()** **------------------------------** **CRA.705/2008 of ADDL. SESSIONS COURT (ADHOC) I, THRISSUR ST.745/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT, WADAKKANCHERY** **....................** ## **REVISION PETITIONER(S): APPELLANT & ACCUSED:** **-------------------------------------------------------------------------------** **BALANARAYANAN,S/O.KRISHNAN, THANKA NIVAS,VAROD.P.O,KOTTAYI.** **BY ADVS. SRI.P.VIJAYA BHANU, SRI.M.REVIKRISHNAN.** ## **RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE:** **-----------------------------------------------------------------------------------------------** **1. RADHAKRISHNAN,S/O.ITTARUNNI EJAMAN, SREE VIJAYAM,MYTHRI ROAD,KUMARANELLUR, WADAKKANCHERRY.** **2. STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM.** ## **R2 BY PUBLIC PROSECUTOR SRI. VENUGOPAL M.R.** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Kss** ## **V.K.MOHANAN, J. ------------------------------------Crl.R.P. No.2063 of 2010** **----------------------------------------** Dated the 15th Day of July 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.50,000/- was due to the complainant from the accused and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 3.1.2006 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 issued by him. With the said allegation, the complainant ## CRL.R.P.2063/10 ## **-:2:-** approached the Judicial First Class Magistrate, Wadakkanchery by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted S.T.No.745/2006. 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 P8 as documentary evidence. From the side of the defence, the accused was examined as DW1 and another witness was examined as DW2 and marked Ext.D1 document. 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 CRL.R.P.2063/10 ## **-:3:-** conviction, the trial court sentenced the revision petitioner-accused to undergo simple imprisonment for 3 months and to pay a fine of Rs.50,000/-, in default, he is directed to undergo simple imprisonment for a further period of one month. It is also ordered that on realisation of the fine amount, the same shall be paid as compensation to the complainant under section 357(1) (b) Cr.P.C. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 27.5.2010 in Crl.A.No.705/2008, the court of Addl. District & Sessions Judge, Fast Track No.1, Thrissur dismissed the appeal confirming the conviction and sentence. 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 CRL.R.P.2063/10 ## **-:4:-** convicting the revision petitioner-accused imposing 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. The learned counsel for the revision petitioner submitted that the sentence of imprisonment awarded by the courts below is exorbitant and prayed that a lenient view may be taken in the matter of sentence. Having regard to the facts and circumstances involved in the ## CRL.R.P.2063/10 ## **-:5:-** case, I am of the view that the said prayer can be considered favourably. 5. 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 while reducing the sentence of imprisonment, fine amount can be enhanced slightly. In the result, the sentence of imprisonment ordered by the courts below is reduced to simple imprisonment for one day, i.e.,till the rising of the court and the revision petitioner is sentenced to pay a fine of Rs.65,000/- which shall be deposited within one month from today and in case of default in paying the fine amount within the time stipulated, he is directed to undergo simple imprisonment CRL.R.P.2063/10 ## **-:6:-** for a period of two months. On realization of the fine amount, the same shall be paid to the complainant under section 357 (1)(b) Cr.P.C. Accordingly, the revision petitioner is directed to appear before the trial court on **16[th] August,2010** to receive the sentence of imprisonment and to deposit the fine amount as ordered by this court. 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 and for realisation of the amount. This Crl.R.P. is disposed of accordingly. **V.K.MOHANAN, JUDGE** **kvm/-** ## CRL.R.P.2063/10 **-:7:-**