Muhammed Basheer v. The State of Kerala and Sherafudeen

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE V.K.MOHANAN** **MONDAY, THE 12TH JULY 2010 / 21ST ASHADHA 1932** **Crl.Rev.Pet.No. 2062 of 2010()** **------------------------------** **CRA.357/2003 of ADDL. DISTRICT &SESSIONS COURT (ADHOC) I, KOLLAM CC.244/2001 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOTTARAKKARA** **....................** ## **REVISION PETITIONER(S): APPELLANT/ACCUSED:** **----------------------------------------------------------------------------** **MUHAMMED BASHEER, S/O.MUHAMMED HANEEFA, ROADARIKATHU VEEDU, PARAKKONAM, PERINGAMALA.** **BY ADVS. SRI.SASTHAMANGALAM S. AJITHKUMAR, SRI.P.M.SANEER.** ## **RESPONDENT(S): RESPONDENTS/COMPLAINANT:** **----------------------------------------------------------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. SHERAFUDEEN, KADAVILAKAM PUTHENVEEDU, VATTARIKKAKAM, CHITHARA.** ## **R1 BY PUBLIC PROSECUTOR SRI. C.M.NAZAR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Kss** ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.R.P. No. 2062 of 2010 ----------------------------------------** Dated the 12th Day of July 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 an amount of Rs.1,60,000/- was due to the complainant from the accused and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 28.10.2000, 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 issued by him. With the said allegation, the complainant approached the Judicial First Class Magistrate-II, Kottarakara, by filing a formal complaint upon which cognizance was taken under Crl.R.P.2062/10 **-:2:-** Section 138 of the N.I.Act and instituted C.C.No.244/2001. During the course of trial, from the side of the complainant, PWs 1 to 3 were examined and he has also produced Exts.P1 to P8 as documentary evidence. From the side of the defence, the accused was examined as DW1 and produced Ext.D1 and D1(a). 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 petitioneraccused 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 3 months and to pay a sum of Rs.1,60,000/- to the complainant as compensation under Section 357(3) Cr.P.C. 3. Challenging the above order of conviction and Crl.R.P.2062/10 **-:3:-** sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 24.3.2010 in Crl.A.No.357/2003, the court of Addl. District & Sessions Judge, (Adhoc-I), Kollam confirmed the conviction of the revision petitioner but sentence was modified and accordingly the revision petitioner is directed to undergo simple imprisonment till rising of the court and to pay a compensation of Rs.1,60,000/- and in default, the revision petitioner is directed to undergo simple imprisonment for three months. It is the above conviction and sentence 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 Crl.R.P.2062/10 ## **-:4:-** revision petitioner is heard elaborately, nothing is brought out to take a different view and 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. The learned counsel for the revision petitioner submitted that a breathing time may be granted to the revision petitioner to pay the compensation and to receive the sentence. Having regard to the facts and circumstances involved in the case, I am of the view that such submission can be considered favourably, but subject to other facts and circumstances involved in the case. 6. As stated earlier, the cheque in question is dated 28.10.2000 for an amount of Rs.1,60,000/- and thus as per the record and finding of the courts below, which upheld by this court, a sum of Rs.1,60,000/- belonged to the Crl.R.P.2062/10 **-:5:-** complainant is with the revision petitioner for the last ten years. If that be so, and considering the legal position as per the decision of the Apex Court in **Damodar S.Prabhu v. Sayed Babalal H** (J.T.2010 (4) SC 457), while granting some time to revision petitioner, the amount of compensation can be enhanced and fixed as Rs.1,75,000/-. In the result, this Crl.R.P is disposed of confirming the conviction imposed against revision petitioner by the courts below for the offence under section 138 of the N.I.Act. . Accordingly, the revision petitioner is sentenced to undergo simple imprisonment for one day, i.e., till the rising of the court and he is further directed to pay a sum of Rs.1,75,000/as compensation to the complainant under Section 357(3) Cr.P.C. In case of any default in paying the amount, he is directed to undergo simple imprisonment for a period of three months. Accordingly the revision petitioner is granted three months time to pay the compensation amount and to receive the sentence of imprisonment. Accordingly, the revision petitioner is directed to appear before the trial court on **11[th]** Crl.R.P.2062/10 ## **-:6:-** **October, 2010** to receive the sentence and to pay the fine 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. This Crl.R.P is disposed of as above. V.K.MOHANAN, JUDGE kvm/- Crl.R.P.2062/10 **-:7:-** 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 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. Crl.R.P.2062/10 **-:8:-** O.P.No. ## **JUDGMENT** Dated:.. **........................................** 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 Crl.R.P.2062/10 **-:9:-** reduced to simple imprisonment till the rising of the court and at the same time, he can be sentenced to pay a fine considering the fact that the amount covered by the cheque in question is with the revision petitioner right from 1.12.2004 and also the said amount can be ordered to be paid as compensation to the complaisant under section 357(1)(b) Cr.P.C. **In the result, this Crl.R.P is disposed of confirming the conviction recorded by the trial court as well as the lower appellate court for the offence under section 138 of the N.I.Act . The substantive sentence of imprisonment imposed against the revision petitioner is set aside and he is sentenced to pay a fine of Rs.35,000/- and in default he is directed to undergo simple imprisonment for a period of 6 months and on realisation of the fine amount, the same shall be paid to the complainant under section 357(1)(b) Cr.P.C. Accordingly, the revision petitioner is directed to appear before the trial court on 3[rd] September, 2010.** 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. **V.K.MOHANAN, JUDGE** Crl.R.P.2062/10 ## **-:10:-** kvm/- O.P.No. **JUDGMENT** Dated:..