K.N. Mohanan v. State of Kerala and Biju M.R

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE V.K.MOHANAN** **THURSDAY, THE 21ST OCTOBER 2010 / 29TH ASWINA 1932** **Crl.Rev.Pet.No. 3112 of 2010()** **------------------------------------** **CRA.215/2009 of SESSIONS COURT, KASARAGOD CC.278/2008 of JUDL.MAGISTRATE OF FIRST CLASS-I, HOSDRUG ....................** ## **REVN. PETITIONER(S): APPELLANT/ACCUSED** **-----------------------------------------------------** **K.N.MOHANAN, AGED 48 YEARS, S/O.NARAYANAN,KALATHIL PARAMBIL AYYANKAVU, RAJAPURAM P.O., KALLAR VILLAGE,KASARAGOD DISTRICT.** **BY ADV. SMT.T.SUDHAMANI** ## **RESPONDENT(S): RESPONDENTS,STATE & COMPLAINANT** **-------------------------------------------------------------------** **1. STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.** **2. BIJU M.R,AGED 33 YEARS,** - **S/O.RAJAPPAN, MATHEN KUNNEL, PANATHUR P.O., PANATHADY VILLAGE, KASARAGOD DISTRICT.** ## **R1 BY PUBLIC PROSECUTOR SMT.P.N.SUMANGALA** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **svs/** ## **V.K.MOHANAN, J.** ## **-----------------------------------------Crl.R.P. No. 3112 of 2010 ----------------------------------------** Dated the 21[st] 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 is aggrieved by the conviction and sentence imposed against him as per the impugned judgments of the courts below. 2. The case of the complainant is that the accused borrowed an amount of Rs.50,000/- from the complainant and towards the discharge of the said liability, the accused issued a cheque dated 27.12.2007 for Rs.50,000/- 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, Hosdurg by filing a formal complaint upon which cognizance was CRRP 3112/10 **-:2:-** taken under Section 138 of the N.I.Act and instituted C.C.No.No.278/2008. 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 P5 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.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 three months and to pay a compensation of Rs.50,000/- to the complainant under section 357(3) Cr.P.C. The default sentence is fixed as simple imprisonment for a further period of one month. CRRP 3112/10 **-:3:-** 3. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 14.9.2010, in Crl.A.No. 215/2009, the court of Sessions Judge, Kasaragod dismissed the appeal confirming the conviction and sentence imposed by the trial court. 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 with the concurrent findings of the courts below. All the CRRP 3112/10 **-:4:-** 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 order of conviction, the learned counsel for the revision petitioner submitted that the imprisonment ordered by the courts below is unreasonable and exorbitant and the same may be set aside. It is also the submission of the learned counsel that a breathing time may be granted to the revision petitioner to pay the amount. 6. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered positively. As per the records, the cheque in question is dated 27.12.2007 that too for an amount of Rs.50,000/-. According to the findings of the courts below which approved by this court, the amount covered by the cheque in question is belonging CRRP 3112/10 **-:5:-** to the complainant, but the said amount is with the revision petitioner for the last three 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. Therefore, considering the above facts and the settled legal position, I am of the view that the sentence of imprisonment ordered by the courts below can be modified and while granting some time to pay the compensation, the amount can be enhanced slightly. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner under section 138 of the N.I Act as recorded by the courts below 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 further directed to pay a compensation of Rs.58,750/- to the complainant under section 357(3) of Cr.P.C. , within three months from today, CRRP 3112/10 ## **-:6:-** and in default, the revision petitioner is directed to undergo simple imprisonment for a period of two months. Accordingly, the revision petitioner is directed to appear before the trial court on **21[st] January, 2011** to receive the modified 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 and for realisation of the amount. Coercive steps if any pending against the revision petitioner shall be deferred till 21.1.2011. This Crl.R.P is disposed of accordingly. **V.K.MOHANAN, JUDGE** kvm/- CRRP 3112/10 **-:7:-**