High Court of KeralaSingle Judge2010-06-21Conviction confirmed; imprisonment sentence set...

Christudas, S/O Yesudas v. The State of Kerala & P. Chellaswamy

Case / Petition Number:CRL.R.P.No.1862/2010

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: V.K. Mohanan
Judgment Date: 2010-06-21
Court Decision / Holding: The Revision Petition is disposed of: conviction under Section 138 NI Act is confirmed; however, the sentence of imprisonment is set aside. The accused is directed to pay Rs. 1,00,000 as compensation to the complainant within three months from today. In case of default, the accused shall undergo simple imprisonment for six months. The accused may pay directly to the complainant or remit the amount in the trial court, subject to its satisfaction. The accused must appear before the trial court on 22 September 2010 to pay the compensation. Execution of any warrant is deferred until 22 September 2010.
Final Disposition: Conviction confirmed; imprisonment sentence set aside; compensation ordered; case disposed.

Parties to the Case

Appellants / Petitioners

Christudas, S/O Yesudas

Respondents

The State of Kerala represented by the Public Prosecutor, High Court of Kerala
P. Chellaswamy, residing at Chanttavil Veedu, Madichal P.O., Kanyakumari District

Legal Representation & Advocates

Counsels for Petitioners

• Sri V. Chittambresh, Senior Advocate
• Sri T.C. Suresh Menon
• Sri Jibu P Thomas
• Sri C.A. Anoop

Counsels for Respondents

• P.P. Smt. M.K. Pushpalatha (Public Prosecutor)

Case Synopsis & Summary

Christudas, the revision petitioner, was charged under section 138 of the Negotiable Instruments Act for issuing a cheque that was dishonoured for lack of funds. The trial court convicted him and sentenced him to six months' imprisonment, plus compensation of Rs 93,000 under section 357(3) Cr.P.C., with a default sentence of three months. On appeal, the Addl. District and Sessions Court, Fast Track Court-1, Thiruvananthapuram, partly allowed the appeal, reducing the substantive sentence to four months. The High Court, in a revision petition, examined whether there was a legally enforceable debt and whether there was a genuine transaction between the complainant and the accused. While noting the Ext. D1 agreement and the testimony of DWs, the court accepted that there was some transaction between the parties, but emphasized that the remedial aim in cheque-dishonour cases should emphasize compensation over punishment, following a Supreme Court decision. Relying on Damodar S. Prabhu v. Sayed Babalal H, the court set aside the imprisonment sentence and directed the accused to pay Rs 1,00,000 as compensation within three months, with six months' imprisonment to be imposed only if the payment is defaulted. The court directed the accused to appear before the trial court on 22 September 2010 to comply, and deferred execution accordingly, while preserving the conviction.

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act, 1881Section 357(3) Cr.P.C.

Submissions & Arguments

Contentions of Appellants / Petitioners

The counsel for the revision petitioner argued that there was no transaction between the accused and the complainant; the cheque in question was not entrusted to the complainant by the accused. It was contended that the entire amount due had already been paid and there was no legally enforceable debt. Ext. D1 suggested a mediator (DW2) and indicated that the alleged transaction was not directly with the petitioner. The defence urged that the evidence does not establish a debt and, considering the long time since the cheque, a lenient view be taken in respect of sentence. The petitioner also submitted willingness to pay the amount with some enhancement within a reasonable time.

Contentions of Respondents

The State/prosecution contended that there was a transaction for consideration and that the cheque was dishonoured due to insufficient funds; the lower courts’ findings of guilt were proper. It was argued that the remedy should balance punishment with deterrence, but with due regard to the debt and the evidence (Ext. D1 and DWs). The prosecution relied on the established practice that compensation should be available, without undermining the conviction.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Damodar S. Prabhu v. Sayed Babalal H	JT 2010 (4) SC 457	Positive	This decision is cited to support prioritizing the compensatory remedy in cheque-dishonour cases, guiding the High Court to substitute imprisonment with payment of compensation.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 21ST JUNE 2010 / 31ST JYAISTHA 1932 Crl.Rev.Pet.No. 1862 of 2010() -----------------------------CRA.1066/2006 of ADDL. SESSIONS COURT FAST TRACK -I,(ADHOC), CC.41/2005 OF THE JFMC-V, NEYYATTINKARA (OLD C.C.24/2001 OF JFMC -II). .................... ## CHRISTUDAS, S/O. YESUDAS, RESIDING AT PRINCE BHAVAN, VANNIYACODE, PARASSALA P.O., NEYYATTINKARA, THIRUVANANTHAPURAM. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.C.A.ANOOP RESPONDENTS: RESPONDENTS 1. THE STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, 2. P.CHELLASWAMY, RESIDING AT CHANTHAVILA VEEDU, MADICHAL P.O., KANYAKUMARI DISTRICT. R1 BY P.P. SMT. M.K.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21/06/2010, THE COURT ON THE SAME DAY PASSED THE ## **V.K.MOHANAN, J.** **---------------------------------------Crl.R.P. No. 1862 of 2010 ----------------------------------------** Dated the 21[st] Day of June, 2010 ## **ORDER** The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the revision petitioner. **2.** The case of the complainant is that the revision petitioner/accused, with whom the complainant had direct knowledge and acquaintance, borrowed a sum of Rs.88,500/- and towards the discharge of the said liability, the accused issued a cheque, which when presented for encashment, dishonoured as there was no sufficient fund in the account maintained by the revision petitioner- accused and he has not paid the cheque amount in spite of lawyer notice sent to him demanding for the same and, therefore, the revision petitioner has committed the offence punishable under section 138 of the NI Act. With the said allegation, a formal complaint was filed before the Judicial First Class Magistrate-II, Neyyattinkara, based upon which, CRL.R.P.No.1862/10 **-:2:-** cognizance was taken for the offence under section 138 of the Act and instituted C.C.No.24/2001. Thereafter the case was transferred to the court Judicial Magistrate of the First Class-V, Neyyattinkara whereupon the case was renumbered as C.C.No.41/2005. During the trial of the case, the complainant was examined as PW1 and produced Exts.P1 to P8(a) documents. From the side of the defence, DWs 1 to 3 were examined and produced Ext.D1 agreement. 3. On the basis of the available materials and evidence, the trial court found that the complainant has succeeded in establishing his case and accordingly, found that the revision petitioner is guilty. Thus, on convicting the revision petitioner, the trial court sentenced him to undergo simple imprisonment for six months and ordered to pay a compensation of Rs.93,000/- to the complainant under section 357(3) Cr.P.C and the default sentence is fixed as simple imprisonment for three months. Against the said verdict, the revision petitioner had preferred Crl.A.No.1066/2006 before the Addl.District and Sessions Judge, Fast Track CRL.R.P.No.1862/10 **-:3:-** Court-1, Thiruvananthapruam and by judgment dated 17.3.2010, the lower appellate court allowed the appeal in part and thus while confirming the conviction, the period of substantive sentence of imprisonment awarded by the trial court is reduced to 4 months. It is the above order of conviction and sentence imposed against the revision petitioner by the courts below are challenged in this Crl.R.P. 4. I have heard the counsel appearing for the revision petitioner and I have also perused the judgments of the courts below. 5. The learned counsel for the revision petitioner submitted that, in fact, there is no transaction between the revision petitioner and the complainant and the cheque in question was not entrusted with the complainant by the revision petitioner. It is also the case of the counsel for the revision petitioner that the entire amount which was due to the complainant was paid off and as such there is no legally enforceable debt due to the 2[nd] respondent/complainant. 6. All the above submissions are depends upon facts, CRL.R.P.No.1862/10 **-:4:-** materials and evidence which were considered by the fact finding authorities, the trial court as well as the lower appellate authority. Though the revision petitioner-accused has taken a contention to the effect that there was no transaction between himself and the complainant, Ext.D1 agreement would show that there was some transaction between the complainant and the accused and the attempt of the revision petitioner, to show that his transaction was with one Muraleedharan, who was examined as DW2, miserably failed and DW2 had gone to the extent in saying that he stood as a mediator between the transaction of the complainant and the revision petitioner/accused. All the above factual issues were properly considered by the trial court as well as the lower appellate court. Hence, I find no reason to interfere with such concurrent finding and therefore, the revision petition is devoid of any merit. 7. The learned counsel for the revision petitioner submitted that the revision petitioner is presently working in the Police Department and the sentence of imprisonment will CRL.R.P.No.1862/10 ## **-:5:-** adversely affect his service career and therefore in the matter of sentence, a lenient view may be taken and also submitted that the revision petitioner is prepared to pay the amount even at an enhanced rate of the total amount, within a reasonable time. 8. I am of the view that the said submission can be considered favourably , especially, in the light of the decision of the Apex Court, in **Damodar S.Prabhu v. Sayed Babalal H** (JT 2010 (4) SC 457), wherein it was held that in a case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. It is also relevant to note that the cheque in question was of the year 2000 and going by the records, it is to be presumed that an amount of Rs.88,500/- which belongs to the complainant is in the hands of the revision petitioner for a period of 10 years. It is also relevant to note that the revision petitioner is now working in the police department and if he is sentenced to undergo imprisonment which will definitely affect his career Considering the above aspect and in the light of CRL.R.P.No.1862/10 **-:6:-** the settled position of law, I am of the view that while setting aside the sentence of imprisonment, the revision petitioner can be directed to pay a compensation, with slight enhancement in the amount fixed by the courts below, to the complainant under section 357(3) Cr.P.C.. In the result, this Crl.R.P is disposed of confirming the conviction of the revision petitioner under section 138 of the N.I.Act as recorded by the trial court as well as the lower appellate court. Accordingly, the sentence of imprisonment imposed against the revision petitioner by the courts below is set aside and he is directed to pay a sum of Rs.1,00,000/(Rs.one lakhs only) as compensation to the complainant within a period of three months from today and in case of any failure on the part of the revision petitioner in paying the compensation as ordered above, he is directed to undergo simple imprisonment for a period of six months. The revision petitioner is free to make the payment of compensation, either directly to the complainant or by remitting the same in the trial court, subject to the satisfaction CRL.R.P.No.1862/10 ## **-:7:-** of the trial court. Accordingly, the revision petitioner is directed to appear before the trial court on **22[nd] September, 2010** to pay the compensation of Rs.1,00,000/- as directed above. If there is any failure 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 to secure the presence of the revision petitioner and to execute the sentence. Execution of warrant, if any pending against the revision petitioner, shall be deferred till 22.9.2010. V.K.MOHANAN, JUDGE kvm/- CRL.R.P.No.1862/10 **-:8:-** O.P.No. **JUDGMENT** Dated:..