K. Ahibhoosan v. M/S Sreelakshmi Kuries and Loans (P) Ltd. and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 17TH AUGUST 2010 / 26TH SRAVANA 1932 Crl.Rev.Pet.No. 2479 of 2010() -----------------------------CRA.95/2010 of ADDL. SESSIONS COURT FAST TRACK-II, PALAKKAD ST.2976/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PALAKKAD .................... REVN. PETITIONER: APPELLANT/ACCUSED -------------------------------------- K.AHIBHOOSHAN, S/O.KUTTAN, PROPRIETOR, GANGA ROADWAYS, KARAPARAMBU.P.O., KOZHIKODE. BY ADV. SRI.P.K.ABOOBACKER (EDAPPALLY) RESPONDENTS): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. M/S.SREELAKSHMI KURIES AND LOANS(P)LTD., KONGAD, PALAKKAD, REP.BY ITS MANAGER, M.HARIDASAN. 2. STATE OF KERALA, REPRESETNED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY P.P. SRI VENUGOPAL M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J. ---------------------------------------Crl.R.P. No. 2479 of 2010 ----------------------------------------** Dated the 17th 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 it is a private limited company conducting kuri business and the accused was one of the subscribers in kuri No.C/18 with a sala of Rs.1,00,000/- and the accused bid the kuri for an amount of Rs.70,000/- and thereafter there was default in paying the kuri amount and subsequently, towards the discharge of the liability, the accused issued a cheque dated 5.6.2008 for an amount of 44,000/- and when the said cheque 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 CRL.R.P.No.2479 ## **-:2:-** issue by him. With the said allegation, the complainant approached the Judicial First Class Magistrate-II, Palakkad by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted S.T.Case No.2976/2008. During the course of trial, from the side of the complainant PW1 was examined and produced Exts.P1 to P11 as documentary evidence. From the side of the defence, DW1 was examined and produced Exts.D1 to D4. Court exhibit marked as Ext.C1. After evaluation of the evidence and the materials on record, the trial court has found that Ext.P4 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 6 months and to CRL.R.P.No.2479 ## **-:3:-** pay a sum Rs.44,000/- by way of compensation with interest at the rate of 8% per mensem from the date of dishonour of cheque i.e., 5.6.2008 till the date of payment. The default sentence is fixed as simple imprisonment for six months. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 17.7.2010 in Crl.A.No.95/2010, the court of Addl. Sessions Judge, Fast Track No.II, Paklakkad, 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 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 CRL.R.P.No.2479 **-:4:-** 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. 4. As this court is not inclined to interfere with the conviction recorded by the courts below, the learned counsel further submitted that the sentence imposed by the courts below is highly unreasonable and exorbitant and the amount fixed by the courts below is also excessive and disproportionate to the liability and therefore, the counsel submitted that the sentence of imprisonment may be set aside and a breathing time may be granted to pay the amount. 5. 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 CRL.R.P.No.2479 **-:5:-** other facts and circumstances. 6. The cheque is dated 5.6.2008 that too for an amount of Rs.44,000/-. The courts below have concurrently found that the said amount is belonging to the complainant but the same is with the revision petitioner for the last two years. 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 the sentence of imprisonment imposed upon the revision petitioner can be modified and the amount of compensation fixed by the courts below 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 . Accordingly, the revision petitioner is directed to undergo simple CRL.R.P.No.2479 **-:6:-** imprisonment for one day, i.e., till the rising of the court and the revision petitioner is further directed to pay a sum of Rs.50,000/- to the complainant as compensation under section 357(3) Cr.P.C., within three months from today, and in case of any default in paying the amount within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for a period of two months. Accordingly, revision petitioner is directed to appear before the trial court on **15.11.2010** 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. This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- CRL.R.P.No.2479 ## **-:7:-** kvm/- .