IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 11TH FEBRUARY 2009 / 22ND MAGHA 1930 Crl.Rev.Pet.No. 1291 of 2001() ------------------------------ CC.703/1999 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... REVN. PETITIONER(S): --------------------- INDIRA REMESHAN, W/O REMESHAN, HOUSE NO.XIV/609 MEPPANA HOUSE, PANDIKUDI DESOM, KOCHI BY ADV. SRI.SAJAN MANNALI RESPONDENT(S): --------------- 1. ANIE XAVIER, W/O XAVIER, NOW RESIDING AT THUNDATHIL, HOUSE NO.XIV/165, CHULLIKKAL, KOCHI-5 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM ADV. SRI.K.D.PAUL DALIN FOR R1 PUBLIC PROSECUTOR SMT.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.GIRI, J ------------------- Crl.R.P.1291/2001 -------------------- Dated this the 11th day of February, 2009 ORDER The complainant in C.C.No.703/99 on the files of the Judicial Magistrate of First Class-II, Kochi, has come up in Revision. The case of the prosecution was that the accused had borrowed an amount of Rs.80,000/- from the complainant and had issued a cheque dated 23.7.99 in discharge of the liability. Cheque was dishonoured due to want of sufficient funds. In spite of notice, the amount was not paid and hence the complaint was lodged. The Court below found the accused guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, and entered a finding that the accused had borrowed an amount of Rs.80,000/- from the complainant and had issued Ext.P1 cheque for re-payment of the same. Thereafter, the accused was sentenced to pay a fine of Rs.3,000/- under Section 138 of the Act with a default sentence of simple imprisonment for two months. There was a further direction that if the fine amount is paid, Rs.2,000/- shall be given to PW1 as Crl.R.P.1291/2001 2 compensation under Section 357(1)(b) of the Cr.P.C. It is aggrieved by the sentence that has been imposed that the complainant has come up in Revision. 2. Learned counsel for the petitioner points out that the Court below had entered a finding that the accused had borrowed an amount of Rs.80,000/- and had failed to re-pay the same. It is thereafter, that a finding has been entered that the accused is guilty of the offence under Section 138 of the Act. In these circumstances, a fine amount of Rs.3,000/- alone, is grossly inadequate, it is contended. A reference is made to the judgment of the Supreme Court in Bhaskaran v. Balan (1999 (3) KLT 440 [SC] ). 3. I note that there is no appeal against the conviction. The Court below itself has entered a finding that the accused had borrowed an amount of Rs.80,000/- from the complainant and has failed to re-pay the same. If that be so, the sentence imposed by the Magistrate should have been more realistic. Learned Magistrate should have taken note of the law laid down by the Crl.R.P.1291/2001 3 Supreme Court in this regard in the aforementioned case. 4. Accordingly, the order under challenge is set aside to the extent to which the fine amount of Rs.3,000/- has been imposed on the accused. Instead, the accused is sentenced to pay a fine of Rs.85,000/-. Such fine amount shall be paid within three months from today. It is further directed that in case of default on the part of the accused to pay the fine amount, she shall undergo simple imprisonment for a period of two months. On realization of the fine amount, an amount of Rs.80,000/- shall be paid there from as compensation to the complainant, under Section 357(1)(b) of the Cr.P.C. The Criminal Revision Petition is allowed to the extent indicated above. V.GIRI, Judge mrcs