N.P. Binu vs M.S. Madhukumar and State of Kerala

V.K. Mohanan, J.—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.

The case of the complainant is that the accused/revision petitioner borrowed a sum of Rs. 60,000/- and towards the discharge of the said liability, the accused issued a cheque dated 12.12.2005 for a sum of Rs. 60,000/-, 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 said allegation, the complainant approached the Judl. First Class Magistrate Court-Kolencherry, by filing a formal complaint, upon which cognizance was taken u/s 138 of Negotiable Instruments Act and instituted S.T. No. 428/06. During the trial of the case, PW1, the complainant himself was examined from the side of the complainant and Exts.P1 to P5 were marked. From the side of the defence, DW1 was examined and no documentary evidence 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 convicted him u/s 138 of Negotiable Instruments Act. On such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment for 2 months and also directed the revision petitioner to pay a sum of Rs. 60,000/- to the complainant as compensation u/s 357(3) of Cr.P.C., failing which the revision petitioner was directed to undergo simple imprisonment for 1 month.

Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 26.8.2010 in Crl.A. 153/10, the Court of IVth Addl. Sessions Judge, Ernakulam, allowed the appeal only in part, confirming the conviction but the sentence of imprisonment is reduced to one day simple imprisonment i.e., till the rising of the court and also upholding the provision for payment of compensation with default sentence as imposed and awarded by the trial court. It is the above conviction and sentence challenged in this revision petition.

I have heard the learned Counsel appearing for the revision petitioner and also perused the judgments of the courts below.

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 approved.

As this Court is not inclined to interfere with the conviction recorded by the courts below, the learned Counsel for the revision petitioner submitted that, some breathing time may be granted to pay the compensation amount. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered positively but subject to other facts and circumstances involved in the case.

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. In the present case, the cheque in question is dated 12.12.2005, that too for an amount of Rs. 60,000/-. Thus as per the records and the findings of the courts below, which approved by this Court, a sum of Rs. 60,000/- which belonged to the complainant is with the revision petitioner for the last 5 years. Considering the above facts and settled legal position, I am of the view that, while granting some time to the revision petitioner to pay the compensation, the amount can be enhanced slightly.

In the result, this revision petition is disposed of confirming the conviction against the revision petitioner u/s 138 of Negotiable Instruments Act as recorded by the courts below. Accordingly, while confirming the sentence of imprisonment awarded by the appellate court and also the order to pay compensation, the compensation amount ordered by the appellate court u/s 357(3) of Cr.P.C. is enhanced to the tune of Rs. 70,000/-, which shall be paid by the revision petitioner, within 3 months from today and in case of default in paying the compensation amount within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for 1 month. Accordingly, the revision petitioner is directed to appear before the trial court on 1.2.2011, to receive the sentence of imprisonment and to pay the compensation amount as directed by this Court. In case, any failure on the part of the revision petitioner in appearing before the court below as directed above and in paying the compensation amount, 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. The execution of warrant if any, pending against the revision petitioner shall be deferred till 1.2.2011.

Criminal revision petition is disposed of accordingly.