K.U. Joseph v. M.J. Joseph and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 31ST AUGUST 2010 / 9TH BHADRA 1932 Crl.Rev.Pet.No. 2548 of 2010(C) -----------------------------CRA.306/2004 of ADDL.SESSIONS COURT (ADHOC)-III, THALASSERY STC.3934/2003 of ADDL.CHIEF JUDICIAL MAGISTRATE COURT, THALASSERY .................... REVN. PETITIONER: ---------------------------- K.U.JOSEPH, S/O.ULAHANNAN AGED 47 YEARS, KALLENMARIYIL HOUSE, PATTARAM, P.O.PAYAM, IRITTY,THALASSERY TALUK. BY ADV. SRI.C.P.PEETHAMBARAN RESPONDENT(S): --------------- 1. M.J.JOSEPH,S/O.JOSEPH, MALIKAKKAL HOUSE, P.O.KOOMANTHODE, KARIKKOTTAKARI, KANNUR DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. R2 BY P.P. SMT. SUMANGALA P.N. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 31/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J.** **--------------------------------------Crl.R.P. No. 2548 OF 2010 ----------------------------------------** Dated the 31st 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.2,00,000/- from him and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 7.11.2003, 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 Addl. Chief Judicial Magistrate, Thalassery, by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted S.T.C.No.3934/2003. During the CRL.R.P. 2548/10 ## **-:2:-** course of trial, the complainant himself mounted to the box and adduced oral evidence as PW1. He has also produced Exts.P1 to P4 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 petitioneraccused to undergo simple imprisonment for a period of six months and to pay a fine of Rs.2,10,000/- (Rs.two lakhs and ten thousand only), in default, to undergo simple imprisonment for three months. It is also ordered that on realisation of the fine amount, a sum of Rs.2,08,000/- shall be paid to the complainant as compensation under section CRL.R.P. 2548/10 ## **-:3:-** ## 357(1)(b) Cr.P.C. 3. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 19.6.2010, in Crl.A.No.306/2004, the court of Addl. Sessions Judge, (Adhoc-III), Thlassery, dismissed that appeal confirming the conviction and sentence imposed by the trial court. 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 by interfering with the concurrent findings of the courts below. All the contentions are based upon the facts and evidence on CRL.R.P. 2548/10 ## **-:4:-** 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 matter has already been settled out of court between the accused and the complainant and certain amount has already been paid to the complainant and now he is not available to file a compounding petition. It also the submission of the learned counsel that the sentence of imprisonment ordered by the courts below is unreasonable and disproportionate to the offence alleged. It is also the submission of the learned counsel that after substantial modification with respect to the sentence of imprisonment, the revision petitioner may be permitted to compensate the complainant by giving the compensation amount, to be fixed by this Court, directly to the complainant. 6. Having regard to the facts and circumstances CRL.R.P. 2548/10 ## **-:5:-** involved in the case, I am of the view that the some of the submission can be considered favourably, but subject to other relevant facts and circumstances involved in the case. It is also relevant to note that though the counsel submitted that the matter has been settled out of court, there is no materials on record before this Court and therefore, the above submission cannot be considered while disposing of this Crl.R.P. 7. From the records, and the findings of the courts below which approved by this Court, it can be seen that a sum of Rs.2 lakhs which covered by Ext.P1 cheque is due to the complainant right from 7.11.2003 and so far no amount is seen paid as per the records. 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. Thus on a consideration of the above facts and circumstances and the settled legal position, I am of the view tht the sentence of imprisonment ordered against the revision petitioner can be CRL.R.P. 2548/10 ## **-:6:-** modified and reduced and at the same time, appropriate condition can be incorporated to compensate the complainant and also reasonable time can be granted to the revision petitioner to pay the amount. In the result, this Crl.R.P 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. Accordingly, the revision petitioner is directed to pay a sum of Rs.2,50,000/- (Rs.two lakhs fifty thousand only) to the complainant as compensation under section 357(3) of Cr.P.C. within three months from today and in case of any default in paying the compensation amount within the stipulated time, the revision petitioner 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 30.11.2010 to receive the sentence and to pay the compensation amount as revised and fixed by this Court. The revision petitioner is free to pay the CRL.R.P. 2548/10 **-:7:-** above amount of compensation either directly to the complainant or by remitting the same in the courts below whichever subject to the satisfaction of the tiral 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 amount. Coercive steps, if any, pending against the revision petitioner shall be deferred till 30.11.2010. This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/-