M.R. Sudheesh v. U. Balakrishnan and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE V.K.MOHANAN** **THURSDAY, THE 5TH AUGUST 2010 / 14TH SRAVANA 1932** **Crl.Rev.Pet.No. 2186 of 2010()** **-------------------------------------------** **CRA.354/2007 of ADDL.SESSIONS COURT (ADHOC-I), KASARAGOD STC.396/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, HOSDURG** **....................** ## **REVN. PETITIONER/APPELLANT/ACCUSED** **---------------------------------------------------------------** **M.R. SUDHEESH, S/O.M.P. SUDARSHANAN, MAILUMMOOTTIL HOUSE, NATTAKAL.P.O, WEST ELLARI VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT.** **BY ADV. SRI.V.BINOY RAM** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT** **----------------------------------------------------------------------** ## **1. U. BALAKRISHNAN, S/O. LATE KRISHNAN,** ## **'KARTHIKA', UPPILIKKAI, PUTHUKKAI VILLAGE.** ## **2. STATE OF KERALA,** **REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SMT.T.SUDHAMANI. R2 BY PUBLIC PROSECUTOR MR.C.M. NAZAR.** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 05/08/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **rs.** ## **V.K.MOHANAN, J. ---------------------------------------Crl.R.P. No. 2186 of 2010** **----------------------------------------** Dated the 5th 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 a sum of Rs.1,20,000/- from the the complainant and towards the discharge of the said liability, the accused two cheques each for Rs.60,000/and one of the cheques is dated 17.1.2006 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-II, Hosdurg by filing a formal complaint upon Crl.R.P. No.2186/10 **-:2:-** which cognizance was taken under Section 138 of the N.I.Act and instituted S.T.C.No.396/2006. 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 P4 as documentary evidence. From the side of the defence, no evidence either oral of 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 6 months and also directed to pay a compensation of Rs.60,000/- to the complainant under section 357(3) Cr.P.C. in default, he is directed to Crl.R.P. No.2186/10 **-:3:-** undergo simple imprisonment for a further period of 3 months. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused had preferred an appeal, by judgment dated 31.7.2007 in Crl.A.No. 354/2007, the court of Addl. Sessions Judge, (Adhoc)-I, Kasaragod dismissed the appeal, confirming the conviction and sentence. It is the above judgments of the trial court as well as the lower appellate court challenged in this Crl.R.P. 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 petitioner-accused. Though the revision petitioner is heard elaborately, nothing is brought out to take a different view by Crl.R.P. No.2186/10 **-:4:-** interfering 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, the learned counsel submitted that the sentence is highly unreasonable and exorbitant and therefore, a lenient view may be taken in the matter of sentence and further sought time to pay the compensation 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 other facts and circumstances involved in this case. The cheque in question is dated 17.1.2006, that too, for an amount of Rs.60,000/- which belongs to the complainant. thus, as per the records and findings of the court s below, Crl.R.P. No.2186/10 **-:5:-** which approved by this Court, the said amount is with the revision petitioner for the last 4 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. Considering the above settled legal position and the above referred facts, according to me, the sentence of imprisonment can be reduced and also while granting some time, the amount of compensation can be enhanced slightly. 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, 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 sum of Rs.70,000/- to the complainant as compensation under section 357(3) Cr.P.C within three months from today. The revision petitioner is Crl.R.P. No.2186/10 ## **-:6:-** directed to appear before the trial court on 6 **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. Coercive step if any pending against the revision petitioner shall be kept in abeyance till 6[th] November, 2010. This Crl.R.P is disposed of Accordingly. V.K.MOHANAN, JUDGE kvm/- Crl.R.P. No.2186/10 **-:7:-**