Raju George v. N.K. Varghese and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE V.K.MOHANAN** **TUESDAY, THE 7TH SEPTEMBER 2010 / 16TH BHADRA 1932** **Crl.Rev.Pet.No. 2599 of 2010()** **--------------------------------------** **CRL.A.No.161/2007 of ADDL. DISTRICT & SESSIONS JUDGE FAST TRACK COURT No.I, THRISSUR. S.T.No.772/2005 of JUDICIAL FIRST CLASS MAGISTRATE, WADAKKANCHERY.** **-----------------------** ## **REVN. PETITIONER(S)/APPELLANT/ACCUSED :-** **------------------------------------------------------------------** **RAJU GEORGE, S/O.GEORGE, CHIRACHOOTTU HOUSE, MANAPPADAM.P.O., KANNAKKANNOOR, PALAKKAD DISTRICT. (NAME OF THE PETITIONER WAS MISTAKENLY WRITTEN AS RAJU ABRAHAM, S/O.ABRAHAM IN THE COMPLAINANT AS WELL AS THE APPEAL MEMORANDUM)** **BY ADV. SRI.M.M.SAIDU MUHAMMED** ## **RESPONDENT(S)/RESPONDENTS/COMPLAINANT/STATE :-** **---------------------------------------------------------------------------------** **1. N.K.VARGHESE, S/O.KURIYAKOSE, PATTIPRAMBU DESAM, NEDILAMATTATH HOUSE, THIRUVILLAMALA VILLAGE, TALAPPILLY TALUK-680 588.** **2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **PUBLIC PROSECUTOR MR.V.TEK CHAND** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **V.K.MOHANAN, J.** **----------------------------Crl.R.P.No.2599 of 2010 --------------------------------Dated this the 7[th] day of September 2010** ## **O R D E R** The accused in a prosecution for an offence u/s.138 of the Negotiable Instruments Act is the revision petitioner, as he is aggrieved by the order of conviction and sentence imposed by the courts below. 2. The case of the complainant is that the accused/revision petitioner borrowed a sum of Rs.80,000/from the complainant and towards the discharge of the debt due to the complainant, he issued a cheque dated 6.3.2004 for a sum of Rs.80,000/-, which when presented for encashment dishonoured, as there was no sufficient fund in the account maintained by the accused and the cheque amount was not repaid inspite of a formal demand notice and thus the revision petitioner has committed the offence Crl.R.P.No.2599 of 2010 -: 2 :- punishable u/s.138 of the Negotiable Instruments Act. With the said allegation, the complainant approached the Judl. First Class Magistrate Court, Wadakkanchery, by filing a formal complaint, upon which cognizance was taken u/s.138 of the Negotiable Instruments Act and instituted S.T.No.772/2005. During the trial of the case, the complainant himself was examined as PW1 and produced Exts.P1 to P6 documentary evidences. No evidence either oral or documentary from the side of the defence. On the basis of the available materials and evidence on record, the trial court has found that the cheque in question was issued by the revision petitioner/accused for the purpose of discharging his debt due to the complainant. Thus accordingly the court held that, the complainant has established the case against the accused/ revision petitioner and consequently found that the accused is guilty and thus convicted him u/s.138 of the Negotiable Instruments Act. On such conviction, the trial court sentenced the revision Crl.R.P.No.2599 of 2010 -: 3 :- petitioner to undergo simple imprisonment for a period of three months and also directed to pay Rs.80,000/- as compensation to the complainant u/s.357(3) of Cr.P.C. and the default sentence is fixed as one month simple imprisonment. 3. Challenging the conviction and sentence imposed by the trial court, though the revision petitioner preferred an appeal, by judgment dated 16.7.2010 in Crl.A.161/2007, the Court of Addl. District & Sessions Judge Fast Track Court No.I, Thrissur dismissed the appeal, confirming the conviction and sentence of the revision petitioner u/s.138 of the Negotiable Instruments Act. It is the above conviction and sentence are challenged in this revision petition. 4. I have heard the learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. 5. Reiterating the stand taken by the accused/revision petitioner during the trial and appeal, Crl.R.P.No.2599 of 2010 -: 4 :- submitted that the complainant has not established the transaction and also the execution and issuance of the cheque. But no case is made out to interfere with the concurrent findings of the trial court as well as the lower appellate court. Therefore, I find no merit in the revision petition and accordingly the conviction recorded by the courts below against the revision petitioner u/s.138 of the Negotiable Instruments Act, is approved. 6. As this court is not inclined to interfere with the order of conviction recorded by the court below, the counsel for the revision petitioner submitted that, a breathing time may be granted to pay the compensation and also permit the revision petitioner to pay the compensation directly to the complainant. 7. Having regard to the facts and circumstances of the case, I am of the view that the said submission can be considered favourably but subject to other facts and circumstances involved in the case. Crl.R.P.No.2599 of 2010 -: 5 :- 8. As per the records and findings of the courts below the cheque in question dated 6.3.2004 that too for an amount of Rs.80,000/-. Thus, a sum of Rs.80,000/belonging to the complainant is with the revision petitioner for the last more than 6 years. The apex court in a recent decision reported in **Damodar S.Prabhu** v. **Sayed Babalal H. [JT 2010(4) SC 457]** has held that, in the case of dishonour of cheques, the compensatory aspect of the remedy should be given priority over the punitive aspects. Having regard to the above facts and settled legal position, while granting some time to pay the compensation amount, the sentence of imprisonment ordered by the court below can be modified and reduced to one day simple imprisonment and the compensation amount can be enhanced slightly considering the fact that the cheque is pertaining to the year 2004. In the result, this revision petition is disposed of confirming the conviction against the revision petitioner Crl.R.P.No.2599 of 2010 -: 6 :- u/s.138 of the Negotiable Instruments Act as recorded by the courts below. Accordingly, the sentence of imprisonment ordered by the court below is modified and reduced to one day simple imprisonment ie; till the rising of the court and the revision petitioner is directed to pay a sum of Rs.1,00,000/- to the complainant as compensation u/s.357(3) of Cr.P.C. within three months from today. Accordingly, the revision petitioner is directed to appear before the trial court on **7[th] December, 2010** to receive the sentence and to pay the compensation amount. The revision petitioner is free to pay the above amount of compensation either directly to the complainant or by remitting the same in the trial court whichever subject to the satisfaction of the learned Magistrate. In case any failure in appearing before the court below and paying the amount as directed above, the trial court is free to take coercive steps against the revision petitioner. The coercive steps, if any, pending against the revision petitioner shall be Crl.R.P.No.2599 of 2010 -: 7 :- deferred till 2.12.2010. Criminal revision petition is disposed of accordingly. ## **V.K.MOHANAN, JUDGE.** Jvt