P.A. George v. State of Kerala and Johnson Xavier

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** **THE HONOURABLE MR. JUSTICE V.K.MOHANAN** **WEDNESDAY, THE 29TH SEPTEMBER 2010 / 7TH ASWINA 1932** ## **Crl.Rev.Pet.No. 2222 of 2010()** **----------------------------CRA.796/2007 OF SESSIONS COURT, ERNAKULAM CC.272/2005 OF JUDICIAL FIRST CLASS MAGISTRATE COURT,KOTHAMANGALAM ....................** ## **REVISION PETITIONER / APPELLANT / ACCUSED :** **----------------------------------- ---------------------------------** **P.A.GEORGE, S/O.ABRAHAM, AGED 61 YEARS, PADATHUPARAMBIL VEEDU, NEAR KUTHUKUZHI R.C. CHURCH, NELLIMATTOM P.O., KUTTAMANGALAM VILLAGE.** **BY ADV. SRI.S.DILEEP (KALLAR)** ## **RESPONDENTS / STATE & COMPLAINANT :** **------------------------------------------------------------** **1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. JOHNSON XAVIER @ JOHNSON X., KALLUPURACKAL, S/O.XAVIER, OORAMVELIL KALLUPURACKAL VEEDU, CHEKKINIKKADU P.O., THAKAZHI VILLAGE, KUTTANADU TALUK (PULICKAL MEDICALS, KOTHAMANGALAM).** **R1 BY PUBLIC PROSECUTOR SMT. SUMANGALA P.N. R2 BY ADV. SRI.ELDHOSE M.VARGHESE** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Mn** ## **V.K.MOHANAN, J.** **-----------------------------------------Crl.R.P. No. 2222 of 2010 ----------------------------------------** Dated the 29th Day of September, 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 towards the discharge of a loan owed to the complainant, the accused issued a cheque dated 31.1.2005 for a sum of Rs.1,50,000/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, Kothamangalam by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted C.C.No.272/2005. During the course of trial, the CRL.R.P 2222/10 **-:2:-** complainant himself mounted to the box and adduced oral evidence as PW1. He has also produced Exts.P1 to P6(a) as documentary evidence. From the side of the defence, DW1 was examined and Ext.D1 notice 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 three months and to pay compensation of Rs.1,50,000/- together with interest to the complainant under section 357(3) Cr.P.C. The default sentence is fixed as simple imprisonment for a period of three months. 3. Aggrieved by the above order of conviction and CRL.R.P 2222/10 ## **-:3:-** sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 17.11.2009 in Crl.A.No.796/2007, the court of II Addl. Sessions Judge, Ernakulam dismissed the appeal confirming the conviction and sentence imposed against the revision petitioner. It is the above judgments of the trial court as well as the lower appellate court challenged in this Crl.R.P. 4. Heard the learned counsel for the revision petitioner as well as the 2[nd] respondent. 5. 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 CRL.R.P 2222/10 **-:4:-** 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. 6. As this court is not inclined to interfere with the conviction, the counsel for the petitioner submitted that the sentence of imprisonment ordered by the courts below is unreasonable and exorbitant and the amount of compensation fixed by the courts below is also excessive and also submitted that a breathing time may be granted to the revision petitioner to pay the compensation amount. 7. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered positively and while fixing the sentence, the submission made by the counsel for the 2[nd] respondent can also be taken into account. 8. The cheque in question is dated 31.1.2005, that CRL.R.P 2222/10 **-:5:-** too for an amount of Rs.1,50,000/-. Thus as per the records and findings of the courts below, which confirmed by this court, the said amount is due to the complainant, but the same is with the revision petitioner for the last five years. It is also beyond dispute that the revision petitioner is now at the age of 63 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 legal position and considering the relevant inputs of this case which I referred above, I am of the view that the sentence of imprisonment ordered against the revision petitioner can be set aside and at the same time, the revision petitioner can be sentenced to pay fine and the fine amount can be fixed after taking into consideration the fact that the cheque amount is with the revision petitioner for the last five years. In the result, this Crl.R.P is disposed of confirming the conviction recorded by the courts below for the CRL.R.P 2222/10 **-:6:-** offence under section 138 of the N.I.Act as recorded by the trial court. Accordingly, the sentence of imprisonment ordered by the trial court and confirmed by the appellate court is set aside. The order to pay compensation under section 357(3) to the complainant is also set aside. In supersession of the above sentence of imprisonment and the direction to pay compensation, the revision petitioner is sentenced to pay a fine of Rs.2,00,000/-(Rs. two lakhs only) within three months from today and on failure to deposit the fine amount within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for a period of three months. Accordingly the revision petitioner is directed to deposit a sum of Rs.2,00,000/- (Rs.Two lakhs only) on or before **29th December, 2010** and in case of any default on the part of the revision petitioner in depositing the fine amount in 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 fine amount. On realisation of the fine CRL.R.P 2222/10 ## **-:7:-** amount, a sum of **Rs.1,95,000/-** shall be paid to the complainant as compensation under section 357(1)(b) Cr.P.C and the remaining amount shall be deposited into State Exchequer. Coercive steps, if any, pending against the revision petitioner shall be deferred till 29.12.2010 This Crl.R.P. is disposed of accordingly. **V.K.MOHANAN, JUDGE** kvm/-