Jacob Thankachan v. Thankamma Varghese and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE V.K.MOHANAN** **MONDAY, THE 16TH AUGUST 2010 / 25TH SRAVANA 1932** **Crl.Rev.Pet.No. 2462 of 2010()** **-------------------------------------------** **CRA.140/2008 of SESSIONS COURT, PATHANAMTHITTA CC.738/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ADOOR** **....................** ## **REVN. PETITIONER/APPELLANT/ACCUSED** **---------------------------------------------------------------** **JACOB THANKACHAN, S/O.THANKACHAN, VAYALIRAKKATHU PUTHEN VEEDU, MANJAMONKALA, PUNALOOR P.O., ELEMPAL MURI, VILAKKUDI VILLAGE, PATHANAPURAM THALUK, KOLLAM DISTRICT.** **BY ADV. SRI.S.SANTHOSH KUMAR (K.K.HOUSE), SMT.SUMITHRA DEVI. M.R.** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT** **-----------------------------------------------------------------------** ## **1. THANKAMMA VARGHESE,** **D/O.KUNJAMMA, MUKALUVILAYIL VEEDU, MELOODE MURI, PALLIKKAL VILLAGE, ADOOR THALUK, PIN-691 566.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **R2 BY PUBLIC PROSECUTOR SMT.PUSHPALATHA M.K..** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **rs.** ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.R.P. No. 2462 of 2010 ----------------------------------------** Dated the 16th Day of August, 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 the accused borrowed an amount of Rs.3,00,000/- from the complainant and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 30.6.2005 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 court of Judicial First Class Magistrate, Adoor by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted C.C.NO.738/2005. During the course of trial, the complainant herself mounted to the box and adduced oral evidence as PW1 and another witness was examined as PW2. CRL.R.P.2462/10 **:-2-:** She has also produced Exts.P1 to P5 as documentary evidence. From the side of the defence, DW1 was examined. 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 one year and also directed to pay sum of Rs.3,00,000/- to the complainant as compensation under section 357(3) Cr.P.C., in default, he is directed to undergo simple imprisonment for a further period of one month. 3. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 20.5.2010 in Crl.A.No.140/2008, the court of Sessions Judge, Pathanamthitta allowed the appeal CRL.R.P.2462/10 **:-3-:** only in part and thus, while confirming the conviction, the sentence of imprisonment is reduced to imprisonment till rising of the court, but the order directing to pay compensation to the complainant is confirmed. The default sentence is fixed as 3 months simple imprisonment. 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 vehemently submitted that the complainant has not established the transaction, execution and issuance of the cheque and that the courts below miserably failed to appreciate the defence case. The specific case of the learned counsel is that the cheque in question is one entrusted with PW2 as security for the job when the accused joined service as Collection agent for collecting money for PW2, who handed over the same to PW1 who is the aunt of PW2. The trial court as well as the lower appellate court has found that no evidence is adduced to show that the accused had worked under PW2 and at the time of joining as an agent CRL.R.P.2462/10 **:-4-:** for collection he had entrusted the cheque in question with PW2. It is also relevant to note that though the revision petitioner has received Ext.P3 lawyer notice, no reply was sent. The trial court as well as the lower appellate court has found that the accused-revision petitioner has miserably failed to make out a probable case, so as to rebut the presumption that available in favour of the complainant. 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 and sentence, the learned counsel for the revision petitioner submitted that a breathing time may be granted to the revision petitioner to receive the sentence and to pay the compensation amount. CRL.R.P.2462/10 **:-5-:** 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 facts and circumstances. 7. The cheque in question is dated 30.6.2005 and thus as per record and findings of the courts below, which upheld by this court, a sum of Rs.3,00,000/- is with the revision petition for the last 5 years. 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, while granting some time to pay the compensation, the amount can be enhanced slightly. In the result, this Crl.R.P is disposed of confirming the conviction recorded by the trial courts below for the offence under section 138 of the N.I.Act and the sentence of imprisonment as modified by the lower appellate court is CRL.R.P.2462/10 **:-6-:** maintained. The revision petitioner is directed to pay a sum of Rs.3,15,000/- as compensation to the complainant under section 357(3) within three months from today, in default, he is directed to undergo simple imprisonment for a period of 3 months. Accordingly, the revision petitioner is directed to appear before the trial court on 16[th] November **, 2010** to receive the sentence and to pay the compensation amount. 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. Warrant if any pending against the revision petitioner shall be kept in abeyance till 16.11.2010. V.K.MOHANAN, JUDGE. kvm/- CRL.R.P.2462/10 **:-7-:** O.P.No. **JUDGMENT** Dated:..