Thyagarajan v. State of Kerala and Manoop P.C.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE V.K.MOHANAN** **MONDAY, THE 4TH OCTOBER 2010 / 12TH ASWINA 1932** **Crl.Rev.Pet.No. 2844 of 2010() -----------------------------------(CRA.448/2008 of II ADDL.SESSIONS COURT, KOLLAM CC.165/2007 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-III, KOTTARAKKARA)** **....................** ## **REVISION PETITIONER/APPELLANT/ACCUSED** **-------------------------------------------------------** **THYAGARAJAN, NIRAPPIL PUTHEN VEEDU, URUKUNNU P.O., PATHANAPURAM TALUK, KOLLAM DISTRICT.** **BY ADV. SRI.AJAYA KUMAR. G** ## **RESPONDENT(S)/ RESPONDENTS/STATE/COMPLAINANT** **------------------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **2. MANOOP.P.C., DHANYA BHAVAN,** **ELAMADU P.O., ELAMADU VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT-691 001.** **R1 BY PUBLIC PROSECUTOR SMT. P.N.SUMANGALA R2 BY ADVS. SRI.A.BALAGOPALAN SRI.A.RAJAGOPALAN SRI.M.S.IMTHIYAZ AHAMMED SRI.K.SANEESH KUMAR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **SVS/** ## **V.K.MOHANAN, J.** ## **------------------------------Crl. R.P.No.2844 of 2010** **----------------------------------------------Dated this the 4[TH] day of October, 2010.** ## **O R D E R** The accused in a prosecution for an offence u/s.138 of 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.1,50,000/- and in discharge of the above debt due to the complainant, issued a cheque dated 20.04.2005 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 cheque amount was not repaid inspite of a formal demand notice and thus the revision petitioner has committed the offence punishable u/s.138 of Negotiable Instruments Act. With the same allegation, the complainant initially approached the Judicial Magistrate **Crl. R.P.No.2844/2010** **2** of the First Class-II, Kottarakkara, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.797/05. Subsequently, the case was transferred to the Judl. Magistrate of the First Class-III, Kottarakkara wherein the case is re-numbered as C.C.No.165/2007. During the trial of the case, complainant himself was examined as PW1 and he has also produced Exts.P1 to P6 documents. No evidence either oral or documentary adduced 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 found that, the complainant has established the case against the accused/revision petitioner and consequently found that the accused is guilty and thus ## **Crl. R.P.No.2844/2010** **3** convicted him u/s.138 of Negotiable Instruments Act. On such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment for a period of 15 days and also ordered to pay a compensation of Rs.1,50,000/- to the complainant u/s.357(3) of Cr.P.C. and the default sentence is fixed as 30 days simple imprisonment. 3. Though an appeal was filed, at the instance of the revision petitioner/accused by judgment dated 11.2.2010 in Crl.A.No.488/08, the Court of II[nd] Additional Sessions Judge, Kollam, dismissed the appeal, confirming the conviction but subject to certain modification with respect to the sentence. Accordingly, the appellate court modified the sentence and directed the revision petitioner to pay a sum of Rs.1,50,000/- as fine and the appellant/revision petitioner is directed to undergo simple imprisonment till rising of the court. It is also ordered that in default of paying the fine amount, **Crl. R.P.No.2844/2010** **4** the revision petitioner has to undergo simple imprisonment for one month. Appellate court has also ordered that till the fine amount is realised, it shall be paid to the complainant. It is the above conviction and sentence 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, 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 Negotiable Instruments Act, is **Crl. R.P.No.2844/2010** **5** approved. 6. As this court is not inclined to interfere with the order of conviction, the learned counsel for the revision petitioner submitted that the sentence of imprisonment ordered by the trial court is unreasonable, arbitrary and exorbitant. It is the further submission of the learned counsel, that the appellate court mistakenly held that the trial court has sentenced the revision petitioner to pay fine, though actually the direction was to pay compensation amount. It is also the submission of the learned counsel that though the trial court sentenced the revision petitioner to undergo 15 days imprisonment, subsequently, the appellate court has reduced the same to one day simple imprisonment. It is the specific submission of the learned counsel that the petitioner had already undergone a term of 32 days imprisonment after the order of conviction recorded by the trail court and before the disposal of the appeal by **Crl. R.P.No.2844/2010** **6** the appellate court. Thus the learned counsel submitted that the above facts may be considered while fixing the sentence. 7. Having regard to the facts and circumstances involved in this case, I am of the view that the submission made by the learned counsel requires serious consideration. At the outset it is to be noted that so far, no appeal is seen filed by the complainant on the ground of inadequacy of the sentence. The appeal was disposed of by judgment dated 11.02.2010 in Crl. Appeal No.488/2008. The appellate court while disposing the appeal reduced the sentence of imprisonment from 15 days to one day simple imprisonment, whereas as per the submission of the learned counsel for the revision petitioner, the petitioner has already undergone imprisonment for a period from 14.09.2008 to 14.10.2008. In the light of the decision of ( **Waikhom Angamba Singh v. State of** **Crl. R.P.No.2844/2010** **7** **Manipur, reported in 1984 Crl. Journal 1269)** , wherein it is held by the Gauhati High Court that the period of imprisonment undergone by the accused therein after the conviction can be deducted from the total period of substantial sentence imposed against the accused. In the light of the above decision and the fact submitted by the learned counsel that the revision petitioner has already undergone 32 days of imprisonment after the conviction, I am of the view that a further incarceration is not warranted and the revision petitioner can be directed to pay the compensation amount as fixed by the trial court to the complainant u/s.357(3) Cr.P.C and the revision petitioner can be directed to pay the said amount within 2 months from today, and the default sentence can be ordered to run on his failure to pay the amount within the period mentioned above. In the result, the revision petition is disposed of **8** ## **Crl. R.P.No.2844/2010** confirming the conviction of the revision petitioner u/s.138 of the Negotiable Instruments Act as recorded by the trial court and lower appellate court. In the light of the fact that the revision petitioner has already undergone the imprisonment for a term of 32 days that is from 14.09.2008 till 14.10.2008, he need not undergo any imprisonment further. Accordingly, the revision petitioner is directed to pay the compensation of Rs.1,50,000/- (Rupees One lakh fifty thousand only) to the complainant u/s.357(3) Cr.P.C within two months from today and the default sentence fixed by the appellate court will be attracted in case of default in paying the above amount within the above period. Accordingly, the revision petitioner is directed to appear before the trial court on 04.12.2010 to pay the compensation amount. If there is any failure on the part of the revision petitioner to appear before the trial court on 04.12.2010 and the paying amount, the trail **9** ## **Crl. R.P.No.2844/2010** court is free to take steps for the realisation of the compensation amount. It is made clear that on realisation of the compensation amount, the same shall be paid to the complainant u/s.357(3) of Cr.P.C. Criminal revision petition is disposed of accordingly. ss/. Sd/- **V.K.MOHANAN, Judge.** //True copy// P.A to Judge