Sunny Joseph v. Sunil Kumar and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE V.K.MOHANAN** **MONDAY, THE 26TH JULY 2010 / 4TH SRAVANA 1932** **Crl.Rev.Pet.No. 2234 of 2010()** **------------------------------** **CRA.350/2008 of ADDL.DISTRICT &SESSIONS COURT (ADHOC)-II, KOTTAYAM ST.313/2007 of JUDL. FIRST CLASS MAGISTRATE COURT II, CHENGANACHERRY.** **...................** ## **REVISION PETITIONER(S):IN CRL.R.P./APPELLANT IN CRL.APPEAL/ ACCUSED IN ST.** **----------------------------------------------------------------** **SUNNY JOSEPH, CHARANGADU VEEDU, ITHITHANAM P.O., PONPUZHA, CHANGANACHERRY.** **BY ADVS. SRI.A.P.SUBHASH, SRI.M.A.ABDUL SHUKOOR.** **RESPONDENT(S) IN CRL.R.P./RESPONDENT IN CRL.APPEAL/ COMPLAINANT IN S.T. & STATE:** **--------------------------------------------------------------------------** **1. SUNIL KUMAR, S/O.GOPALAKRISHNA PANICKER, THADATHIL, PADIMON P.O., MALLAPPALLY, PATHANAMTHITTA, NOW RESIDING AT VADAKKETHIL, ITHITHANAM P.O., PONPUZHA, CHANGANCHERRY, KOTTAYAM.** **2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R2 BY PUBLIC PROSECUTOR SRI. C.M. NAZAR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Kss** ## **V.K.MOHANAN, J.** **---------------------------------------Crl.R.P. No.2234 of 2010 ----------------------------------------** Dated the 26[th] 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.80,000/- was due to the complainant from the accused and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 3.2.2004 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 CRRP 2234/10 ## **-:2:-** complainant approached the Judicial First Class Magistrate-II, Changanacherry by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted S.T.No.313/2007. 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 P6 as documentary evidence. No evidence produced from the side of the defence. 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. CRRP 2234/10 ## **-:3:-** On such conviction, the trial court sentenced the revision petitioner-accused to undergo simple imprisonment for 3 months and to pay a fine of Rs.80,000/-, in default, he is directed to undergo simple imprisonment for a further period of one month. It is also ordered that on realisation of the fine amount, the same shall be paid to the complainant under section 357(1) Cr.P.C. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 25.3.2010 in Crl.A.No.350/2008 the court of Addl. District & Sessions Judge, (Adhoc-II), Kottayam, dismissed the appeal confirming the conviction and sentence imposed by the trial court. 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 CRRP 2234/10 **-:4:-** 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. 4. As I am not inclined to interfere with the conviction, the learned counsel submitted that the sentence imposed against the revision petitioner is CRRP 2234/10 **-:5:-** exorbitant and unreasonable and some leniency may be shown and also submitted that a breathing time may be granted to the revision petitioner to pay the fine amount. I am of the view that in the light of the particular facts and circumstances involved in the case, the said submission can be considered positively. 5. In this juncture, it is relevant to note that the cheque in question is dated 3.2.2004, that too, for an amount of Rs.80,000/-. As per the records and the findings of the court below, the said amount belonged to the complainant is with the hands of the revision petitioner for the last six 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. Therefore, considering the above facts and circumstances also the legal position, I am of the view CRRP 2234/10 ## **-:6:-** that the sentence of imprisonment ordered by the courts below can be set aside and at the same time, the fine amount fixed by the courts below can be enhanced slightly. In the result, this Crl.R.P is disposed of confirming the conviction recorded by the courts below against the revision petitioner for the offence under section 138 of the N.I.Act . Accordingly, the sentence of imprisonment ordered by the courts below is set aside, whereas the revision petitioner is sentenced to pay a fine of Rs.90,000/- within three months from today and in case of default in paying the fine amount within the stipulated time, he 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 **26.10.2010** to deposit the fine amount. On realisation of the fine amount, a sum of Rs. 87,000/- shall be paid to the complainant CRRP 2234/10 ## **-:7:-** under section 357 (1)(b) Cr.P.C. and the balance amount shall be deposited into the State Exchequer. The learned counsel for the revision petitioner pointed out that the revision petitioner had already deposited a sum of Rs.20,000/- in the trial court in terms of the order passed by the lower appellate court in Crl.M.A. No.1351/2008 in Crl.A.No.350/2008 while suspending the sentence. If that be so, and the said amount is retained in the trial court, towards the payment of the fine amount fixed by this court he need to pay only the balance amount. The Crl.R.P. is disposed of accordingly. **V.K.MOHANAN, JUDGE.** kvm/- CRRP 2234/10 **-:8:-** kvm/-