IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 23RD JULY 2010 / 1ST SRAVANA 1932 Crl.Rev.Pet.No. 2005 of 2010() ----------------------------------------------- CRA.1030/2007 of ADDL. SESSIONS COURT, VADAKARA ST.92/2006 of JUDL.FIRST CLASS MAGISRATE COURT-II, VADAKARA. .................................................. REVN. PETITIONER(S): REVISION PETITIONER: -------------------------------------------------------------------------- JANU P.P.,PUTHIYAPRAMBATH HOUSE, NADAKKUTHAZHA P.O.,VATAKARA TALUK, KOZHIKODE DISTRICT. BY ADV. MR.C.A.MAJEED MR.P.ABDUL JALEEL MR.K.H.ASIF RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SREEJA K.P., KEEZHANATHAZHA KUNIYIL HOUSE, NADAKKUTHAZHA P.O.,VATAKARA TALUK, KOZHIKODE DISTRICT. PUBLIC PROSECUTOR MR. JAYASURYA . B FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K. MOHANAN, J. ----------------------------------------- Crl.R.P. No. 2005 of 2010 --------------------------------------- Dated this the 23rd day of July, 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 she 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.3,50,000/-(Rupees Three lakhs fifty thousand only) from the complainant during the month of March 2003 and promised that the amount would be paid within one month. According to the complainant, though it was repeatedly demanded for re-payment, no amount was paid back. But finally on 08.05.2003, the accused issued a cheque for Rs.3,50,000/-. It is also the case of the complainant that the accused requested her that the cheque may not presented on 08.05.2003 and requested time till October 2003 and thus subsequently on the Crl.R.P. No. 2005/2010 2 basis of the assurance given by the accused, the cheque was presented for encashment but it was dishonoured for the reason “funds insufficient” and the drawers signature differs from specimen given. Thereafter, the complainant caused to issue a lawyer notice demanding the repayment of the amount covered by the dishonoured cheque, but no amount was paid. Hence the complainant initially approached the Judl. First Class Magistrate Court, Vadakara by filing a complaint alleging the offence u/s.139 of the Negotiable Instruments Act, upon which cognizance was taken for the said offence and S.T.No.5345/2003 was instituted in that court. Thereafter, the case was transferred to the present court wherein the case is renumbered as S.T. No.92/2006. During the trial of the case, PWs 1 and 2 were examined from the side of the complainant and Ext.P1 to P8 were marked. Neither the oral evidence nor any documentary evidence produced from the side of the defence. Ext.C1 expert report marked during the Crl.R.P. No. 2005/2010 3 trial of the case. 3. On the basis of the available materials and evaluation of the same, the trial court found that accused issued Ext.P1 cheque towards the discharge of the liability due to the complainant and thus the complainant has established the case against the accused and accordingly the accused is found guilty and convicted her u/s.138 of the Negotiable Instruments Act. On conviction, the trial court sentenced the accused to undergo simple imprisonment for a period of 9 months and also directed her to pay compensation of Rs.3,50,000/- to the complainant u/s.357(3) of Cr.P.C and the default sentence is fixed as 6 months simple imprisonment. Though an appeal was filed by the revision petitioner/accused, by judgment dated 08.03.2010 in Crl. Appeal 1030/2007, the court of Addl. District and Sessions Judge, Vadakara, allowed the appeal only in part and the substantive sentence is reduced to 6 months simple imprisonment and the Crl.R.P. No. 2005/2010 4 order for compensation and default sentence etc were confirmed. 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. The counsel for the revision petitioner vehmentally submitted that the complainant had failed to establish the transaction and also the execution and issuance of the cheque. The above submissions are purely based upon facts which are properly appreciated by the trial court as well as the lower appellate court. 6. It is relevant to note that though the revision petitioner /accused disputed the signature on Ext.P1 cheque, Ext.C1 report of the expert which relied on the court below are sufficient to show that cheque in question was executed by the accused/revision petitioner. When the complainant produced Ext.P1 cheque which contain the signature of the accused, in Crl.R.P. No. 2005/2010 5 support of her allegation that the sum of Rs.3,50,000/- was due to her from the accused and towards the discharge of the said liability, the accused issued the cheque, it is for the accused to effectively establish the defence case. In the present case the only defence taken by the accused is that the house of the accused attacked by the subscribers of the chitty conducted by the accused and in that incident several articles were lost from the house of the accused and Ext.P1 cheque was one among such articles. Absolutely no evidence is adduced to establish the above plea. 7. It is also relevant to note that though statutory notice was issued and the same was served in the address of the accused, though the accused was not in the house, it cannot be presumed that she was not aware of the service of the notice. So the best and first opportunity which was available to the accused to raise her plea was not utilized by her and it is for the first time, in the court, the accused raised such a plea Crl.R.P. No. 2005/2010 6 regarding the lose of cheque leaves. In the absence of any details or evidence regarding such plea, this court is not expected to conduct an enquiry, especially when the trail court as well as the lower appellate court declined such a plea. Thus, I find no reason to interfere with the concurrent finding of the trial court as well as the lower appellate court and accordingly the conviction recorded by the courts below is confirmed. 8. As court is not inclined to interfere with the order of conviction recorded by the courts below, the learned counsel for the revision petitioner submitted that some leniency may be shown with respect to the sentence of imprisonment awarded against the revision petitioner. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered favourably, provided the revision petitioner is prepared to pay a sum of Rs.3,75,000/- to the complainant as compensation for which the learned counsel for the Crl.R.P. No. 2005/2010 7 revision petitioner expressed his no objection. 9. It is relevant to note that the cheque in question dated 08.05.2003 for an amount of Rs.3,50,000/-. Thus as per the records and the findings of the court below which approved by this court, an amount of Rs.3,50,000/- which belonged to the complainant is with the revision petitioner for the last 7 years. It is also the the fact that the revision petitioner/accused is a woman who crossed the age of 55 years. The apex court in the decision 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. Considering the above legal position and the facts indicated above, I am of the view that the sentence of imprisonment imposed by the court below can be reduced but at the same time, the compensation amount can be enhanced and fixed to the tune of Rs.3,75,000/- (Rupees Three lakhs seventy five Crl.R.P. No. 2005/2010 8 thousand only). 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, the sentence of imprisonment is modified and reduced to one day simple imprisonment, i.e, till the raising of the court and the revision petitioner is further directed to pay a sum of Rs.3,75,000/- (Rupees Three lakhs seventy five thousand only) to the complainant as compensation u/s.357(3) of Cr.P.C. within 3 months from today and in case of default in paying the amount within the above time, the revision petitioner is directed to undergo simple imprisonment for a period of 6 months. Accordingly, the revision petitioner is directed to appear before the trial court on 23.10.2010 to receive the sentence 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 Crl.R.P. No. 2005/2010 9 below as directed above and in depositing 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 and to realise the compensation amount. Criminal revision petition is disposed of accordingly. V.K. MOHANAN, JUDGE. ss/.