Dr. Ambedkar Memorial Education Trust v. Rakesh P.V and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE V.K.MOHANAN** **TUESDAY, THE 12TH OCTOBER 2010 / 20TH ASWINA 1932** **Crl.Rev.Pet.No. 2764 of 2010()** **------------------------------** **CRA.221/2009 of SESSIONS COURT, KASARAGOD CC.164/2009 of JUDICIAL FIRST CLASS MAGISTRATE II (ADDITIONAL MUNSIFF) KASARAGOD)** **....................** ## **REVISION PETITIONER(S): APPELLANT/ACCUSED:** **---------------------------------------------------------------------------** **DR.AMBEDKAR MEMORIAL EDUCATION TRUST, REP. BY ITS CHAIRMAN, A.PADMAKUMAR, AGED 50 YEARS, P.KUNHIRAMAN NAIR, PRIYE-POST, HOSDURG TALUK, KASARAGOD DT.** **BY ADVS. SRI.T.B.SHAJIMON, SMT.GOVINDU P.RENUKADEVI.** ## **RESPONDENT(S): RESPONDENT/COMPLAINANT & STATE:** **----------------------------------------------------------------------------------------** **1. RAKESH.P.V, S/O.KUNHIKANNAN NAIR.P., OJAS, PANOOR, KOTTOOR POST, MULIYAR, KASARAGOD.** **2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** ## **R2 BY PUBLIC PROSECUTOR SMT. SUMANGALA P.N.** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Kss** ## **V.K.MOHANAN, J.** ## **-----------------------------------------Crl.R.P. No. 2764 of 2010** **----------------------------------------** Dated the 12th day of October, 2010 ## **ORDER** The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the revision petitioner as he/she is aggrieved by the conviction and sentence imposed against him as per the impugned judgment. 2. The case of the complainant is that the accused being the Chairman of Dr.Ambedkar Memorial Education Trust and who is having full control over the Trust, appointed the complainant as a non-teaching staff in the college coming under the Trust and the accused demanded a sum of Rs.2,15,000/- as deposit in the Trust and promissed to refund the same whenever the complainant leaves the job. Accordingly the complainant left the job during the month of January 2007 and the accused issued a cheque dated 10.5.2008 for Rs.1,40,000/-, which when presented for encashment was dishonoured dishonoured as there was no sufficient fund in the account maintained by the accused CRL.R.P 2764/10 **-:2:-** 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 complainant approached the Judicial First Class Magistrate-I, Kasaragod wherein the case was taken on file as C.C.No.666/2008 and subsequently, the case was withdrawn from that court and made over to the Judicial First Class Magistrate Court-II, (Additional Munsiff), Kasaragod, wherein the case was renumbered as C.C.No.164/2009. 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 P6 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.P2 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 CRL.R.P 2764/10 **-:3:-** 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 sentenced the revision petitioner-accused to undergo simple imprisonment for a period of six months and to pay a compensation of Rs.1,40,000/- to the complainant under section 357(3) Cr.P.C. The default sentence is fixed as simple imprisonment for a period of four months. 3. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 12.8.2010 in Crl.A.No.221/2009, the court of Sessions Judge, Kasaragod dismissed the appeal confirming the conviction and sentence. It is the above judgments of the trial court as well as the lower appellate court challenged in this Crl.R.P. 4. Reiterating the contention taken by the defence during the trial and appellate stages, the learned counsel submitted that the complainant has not established the CRL.R.P 2764/10 **-:4:-** transaction, execution and issuance of the cheque and therefore, the courts below are absolutely wrong in 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 to interfere 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. 5. As this court is not inclined to interfere with the conviction, the counsel submitted that the substantive sentence ordered by the courts below is unreasonable and exorbitant. It is also submitted that the revision petitioner is ready to compensate the complainant and CRL.R.P 2764/10 **-:5:-** a breathing time may be granted to him for the same. 6. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered favourably, but subject to other relevant inputs of this case. The cheque in question is dated 10.5.2008, that too for an amount of Rs.1,40,000/-. Thus as per the record and finding of the courts below, which upheld by this court, a sum of Rs.1,40,000/- which belonged to complainant is with the revision petitioner for the last more than two year. 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 facts and the legal position, I am of the view that the sentence of imprisonment can be modified and the revision petitioner can also be sentenced to pay fine instead of a direction to pay compensation. In the result, this Crl.R.P is disposed of confirming CRL.R.P 2764/10 **-:6:-** the conviction recorded by the courts below 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 simple imprisonment, i.e. till the rising of the court and the revision petitioner is also sentenced to pay a fine of **Rs.1,54,000/-** within three months from today and if there is any default in depositing the fine amount within the above period, he is directed to undergo simple imprisonment for six months. Accordingly the revision petitioner is directed to appear before the trial court on **12[th] January, 2011** to receive the modified sentence and to deposit the fine amount fixed 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 fine amount. On deposit of the fine amount, a sum of **Rs.1,50,000/-** (Rs.One lakh and fifty thousand only) shall CRL.R.P 2764/10 ## **-:7:-** be paid to the complainant as compensation under section 357(1)(b) of Cr.P.C. The remaining amount shall be deposited in the State Exchequer. Coercive steps, if any, pending shall be deferred till 12.1.2011 This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/-