DR. JAYANTHAN v. KERALA AYURVEDA PHARMACY LTD.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 23RD SEPTEMBER 2010 / 1ST ASWINA 1932 Crl.Rev.Pet.No. 2804 of 2010 (CRA.890/2008 OF ADDL. SESSIONS COURT (ADHOC III), NORTH PARAVUR. ) (CC.1306/2003 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA) REVN. PETITIONER: /APPELLANT/ACCUSED ---------------------------------------------------------- DR.JAYANTHAN, AGED 52, MAHESH AYURVEDA RESEARCH CENTRE, MADURAI-14. BY ADV. SRI.C.D.JOHNY RESPONDENTS: RESPONDENTS/COMPLAINANT/STATE -------------------------------------------- 1. KERALA AYURVEDA PHARMACY LTD., P.B.NO.2, ATHANI, ALUVA, REP.BY ITS WELFARE SUPERVISOR, THOMAS, S/O.ANTONY, MANJALY HOUSE, KARUKUTTY (POWER OF ATTORNEY OF MANAGING DIRECTOR) 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT. C.M. CHARISMA. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J. -----------------------------------------Crl.R.P. No. 2804 of 2010 ----------------------------------------** Dated the 23rd Day of September, 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 it is a company engaged in the manufacture of ayurvedic medicines and the accused purchased medicines from the complainant company and towards the discharge of the liability arose out of that transaction, the accused issued a cheque dated 3.3.2003 for Rs.75,000/-, 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 caused to issue by him. With the said allegation, the complainant approached the Judicial First Class Magistrate-I, Aluva by filing a formal CRL.R.P 2804/10 **-:2:-** complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted C.C.No.1306/2003. During the course of trial, from the side of the complainant PW1 was examined and Exts.P1 to P8 documents were marked. 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.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 conviction, the trial court sentenced the revision petitioner-accused to undergo simple imprisonment for a period of six months and also directed to pay compensation of Rs.75,000/- to the complainant under section 357(3) Cr.P.C. The default sentence is fixed as simple imprisonment for a period of 60 days. CRL.R.P 2804/10 **-:3:-** 3. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 26.10..2009 in Crl.A.No.890/2008, the court of Addl. District & Sessions Judge, (Adhoc-III), N.Paravur dismissed the appeal confirming the conviction and sentence imposed against the revision petitoner. 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 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 petitioner-accused. Though the revision petitioner is heard elaborately, nothing is brought out to take a different view to interfere CRL.R.P 2804/10 **-:4:-** 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 sentence of imprisonment ordered by the courts below is unreasonable and exorbitant and the same is liable to be set aside and also submitted that a breathing time may be granted to the revision petitioner to pay the amount. 6. I have carefully considered the above submission of the learned counsel. 7. The cheque in question is dated 3.3.2003, that too for an amount of Rs.75,000/-. Thus as per the record and finding of the courts below, which upheld by this court, a sum of Rs.75,000/- is with the revision petitioner for the last seven years. The Apex Court, in its recent decision in **Damodar S.Prabhu v. Sayed Babalal H** CRL.R.P 2804/10 ## **-:5:-** (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. Therefore, according to me, in the light of the above legal position, the sentence of imprisonment ordered by the courts below can be set aside and the sentence can be confined to fine only and the amount can be fixed considering the fact the amount covered by the cheque in is with the revision petitioner for the last 7 years. In the result, this Crl.R.P is disposed of confirming the conviction recorded by the courts below for the offence under section 138 of the N.I.Act. Accordingly, in supersession of the sentence of imprisonment ordered against the revision petitioner, he is sentenced to pay a fine of **Rs.1,05,000/** - (Rs.one lakh five thousand only) within three months from today and in default in paying the amount within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for a period of six months. Accordingly, the revision petitioner is directed to deposit a sum of Rs.1,05,000/- being the fine amount CRL.R.P 2804/10 ## **-:6:-** on or before 23.12.2010. If there is any default on the part of the revision petitioner in depositing the fine amount on or before 23.12.2010, 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. The fine amount if realised, a sum of Rs.one lakh shall be given to the complainant as compensation under section 357(1)(b) Cr.P.C. The remaining amount shall be deposited into the State Exchequer. Coercive steps, if any, pending shall be deferred till 23.12.2010. This Crl.R.P. is disposed of accordingly. **V.K.MOHANAN,** kvm/- ## CRL.R.P 2804/10 ## **-:7:-** kvm/-