Xavierkutty v. Xavier William and State of Kerala (Criminal Revision Petitions)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE V.K.MOHANAN** **FRIDAY, THE 16TH JULY 2010 / 25TH ASHADHA 1932** **Crl.Rev.Pet.No. 2120 of 2010()** **------------------------------** **CRA.799/2009 of IV ADDITIONAL SESSIONS JUDGE, ERNAKULAM CC.1387/2006 of ADDL.CHIEF JUDICIAL MAGISTRATE (E & O), ERNAKULAM** **....................** **REVN. PETITIONER(S)/APPELLANT/ACCUSED :-** **-------------------------------------------------------------------** **XAVIERKUTTY, AGED 40 YEARS, MEREENA TRADING & EXPORTS, PANORAMA ARCADE, EDAPPALLY, KOCHI.** **BY ADV. SRI.NAVEEN.T SRI.I.M.MANOJ** ## **RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE :-** **--------------------------------------------------------------------------------------** **1. XAVIER WILLIAM, S/O.WILLIAM, VARAKKAT HOUSE, VII/666 A, UDAYATHUMVATHIL HOUSE, PANANGAD P.O.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **PUBLIC PROSECUTOR MR.C.M.NAZAR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16/07/2010 ALONG WITH CRL.R.P.No.2121 OF 2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **V.K.MOHANAN, J. ~~~~~~~~~~~~ Crl.R.P.Nos.2120 & 2121 of 2010 ~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 16[th] day of July 2010** ## **O R D E R** As these two revision petitions are arising out of common judgment of both the appellate as well as the trial court and the parties are same and the issues raised are common, these revision petitions are heard together and being disposed by this common judgment. 2. The revision petitioner is the accused in two cases, ie; C.C.Nos.1386/2006 and 1387/2006 of the court of Addl.Chief Judicial Magistrate (Economic Offences), Ernakulam. The trial court found that the accused is guilty under Sec.138 of the N.I.Act and accordingly he is sentenced to undergo simple imprisonment for a period of one month and also ordered to pay an amount of Rs.3,30,000/- to the complainant as compensation under Crl.R.P.Nos.2120 & 2121 of 2010 -: 2 :- Sec.357(3) of Cr.P.C. and in case of default, he is directed to undergo simple imprisonment for 3 months. It is the above conviction and sentence are challenged in these revision petitions. ## **Crl.R.P.No.2120/10** This revision petition is preferred challenging the judgment of the trial court in C.C.No.1387/2006 and the appellate court judgment dated 25.5.2010 in Crl.A.No.799/2009. In this case, the allegation of the complainant is that towards the discharge of the liability of the accused/revision petitioner, he had issued a cheque dated 15.5.2005 for an amount of Rs.2,20,000/-, which when presented for encashment dishonoured for want of sufficient fund in the account maintained by the accused and the cheque amount was not repaid in spite of a formal demand notice and thus the revision petitioner has committed the offence punishable u/s.138 of the Negotiable Instruments Act. With the said allegation, the complainant Crl.R.P.Nos.2120 & 2121 of 2010 -: 3 :- approached the Court of Addl.Chief Judicial Magistrate (Economic Offences), Ernakulam by filing a formal complaint, upon which cognizance was taken u/s.138 of the Negotiable Instruments Act and instituted C.C.No.1387/2006. ## **Crl.R.P.No.2121/10** This revision petition is preferred challenging the judgment of the trial court in C.C.No.1386/2006 and the appellate court judgment dated 25.5.2010 in Crl.A.No.800/2009. In this case, the allegation of the complainant is that towards the discharge of the liability of the accused/revision petitioner, he had issued a cheque dated 15.6.2005 for an amount of Rs.1,10,000/-, which when presented for encashment dishonoured for want of sufficient fund in the account maintained by the accused and the cheque amount was not repaid in spite of a formal demand notice and thus the revision petitioner has committed the offence punishable u/s.138 of the Negotiable Crl.R.P.Nos.2120 & 2121 of 2010 -: 4 :- Instruments Act. With the said allegation, the complainant approached the Court of Addl.Chief Judicial Magistrate (Economic Offences), Ernakulam by filing a formal complaint, upon which cognizance was taken u/s.138 of the Negotiable Instruments Act and instituted C.C.No.1386/2006. 3. The Court of Addl.Chief Judicial Magistrate (Economic Offences), Ernakulam tried the above two cases together and during the evidence of the complainant, the complainant himself mounted to the box and adduced evidence as PW1. Besides the oral evidence, he had also produced Exts.P1 to P12 documents. Suffice to say, 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 cheques in question were issued by the revision petitioner/accused for the purpose of discharging his debt due to the complainant. Thus accordingly the court held Crl.R.P.Nos.2120 & 2121 of 2010 -: 5 :- 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 conviction in both the case, the trial court sentenced the accused/revision petitioner to undergo simple imprisonment for a period of one month and also directed to pay compensation of Rs.3,30,000/- to the complainant under Sec.357(3) of Cr.P.C. and the default sentence is fixed as 3 months simple imprisonment. 4. Aggrieved by the above conviction and sentence though the revision petitioner/accused had preferred two separate appeals, ie; Crl.A.No.799/2009 against the judgment in C.C.No.1387/2006 and the Crl.A.No.800/2009 and the judgment in C.C.No.1386/2006, the court of Additional Sessions Judge-IV, Ernakulam by a common judgment dated 25.5.2010 dismissed both the appeals confirming the conviction and sentence ordered by the trial court. The present revision petitions are filed challenging Crl.R.P.Nos.2120 & 2121 of 2010 -: 6 :- the above judgments of the court below and the conviction and sentence of the revision petitioner. 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 was endorsed by the courts below against the revision petitioner u/s.138 of Negotiable Instruments Act. 6. As this Court is not inclined to accept the contentions of the revision petitioner and to admit the revision petitions, the learned counsel for the revision petitioner submitted that a breathing time may be granted and also submitted that the sentence of imprisonment ordered against the revision petitioner is highly excessive Crl.R.P.Nos.2120 & 2121 of 2010 -: 7 :- and exorbitant and a lenient view may be taken in the matter of sentence. 7. Having regard to the facts and circumstances involved in the case, I am of the view that the above submission of the learned counsel can be considered favourably but subject to other facts and circumstances involved in the case. As per the records and the findings of the court below which approved by this Court, a total sum of Rs.3,30,000/- which belonged to the complainant is with the revision petitioner for the last 5 years. In the decision in **Damodar.S.Prabhu v. Sayed Babalal.H** [J.T. 2010 (4) SC 457] the honourable Apex Court has held that in the case of dishonour of cheques, the compensatory aspect of the remedy shall be given preference than the punitive aspect. Considering the above factual inputs and the legal position, I am of the view that the sentence of imprisonment can be reduced but the amount of compensation ordered by the court below can be enhanced slightly. Crl.R.P.Nos.2120 & 2121 of 2010 -: 8 :- In the result, these revision petitions are disposed of confirming the conviction of the revision petitioner under Sec.138 of the N.I. Act. Accordingly, in modification of the sentence ordered by the court below, reduced the same and the revision petitioner is sentenced to undergo simple imprisonment for one day ie; till the rising of the court, but at the same time, the revision petitioner is directed to pay a total sum of Rs.3,50,000/- to the complainant under Sec.357 (1)(b) of Cr.P.C. within 3 months from today and in case in default in paying the compensation amount within the above stipulated time, the revision petitioner 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 **15[th] October 2010** to receive the sentence and to pay the compensation amount as directed above. In case any failure on the part of the revision petitioner in appearing before the court below as directed above and in making the deposit of compensation amount, Crl.R.P.Nos.2120 & 2121 of 2010 **==> picture [30 x 10] intentionally omitted <==** the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence awarded against the revision petitioner. ## **V.K.MOHANAN, JUDGE.** Jvt