IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 2ND SEPTEMBER 2010 / 11TH BHADRA 1932 Crl.Rev.Pet.No. 1552 of 2009() --------------------------------------- CRA.468/2008 of ADDL.SESSIONS COURT(ADHOC-I), ERNAKULAM CC.1051/2005 of JUDICIAL MAGISTRATE OF FIRST CLASS – II, PERUMBAVOOR .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED :- ------------------------------------------------------------------ MRS. BINU, W/O. BINU, AGED 33 YEARS, POTTODATHIL VEEDU, KATTACHIRA P.O., KOTTAYAM. BY ADV. SRI.T.I.ABDUL SALAM RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE :- ------------------------------------------------------------------------------------ 1. TRAVANCORE FINANCE, PERUMBAVOOR, REPRESENTED BY ISSAC MATHAI, S/O. MATHAI, MANAGING PARTNER, KOTTISSERIKUDY HOUSE, NEDUNGAPARAKARA, VENGOOR VILLAGE. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.SEEMANGALA.P.N. FOR R2 MR.ANIL K.MOHAMMED FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt V.K.MOHANAN, J. ----------------------------- Crl.R.P.No.1552 of 2009 --------------------------------- Dated this the 2nd day of September 2010 O R D E R The accused in a prosecution for an offence u/s.138 of the 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 connected with a hypothecation agreement between the husband of the revision petitioner and complainant, the accused stood as a surety and towards the final settlement of the amount due to the complainant, the accused issued a cheque dated 29.6.2005 for an amount of Rs.2,02,000/-, which when presented for encashment dishonoured, as there was no sufficient fund in the account maintained by the accused. Informing the dishonour of the cheque and demanding for Crl.R.P.No.1552 of 2009 -: 2 :- payment of the amount covered by the dishonoured cheque and a lawyer notice was caused to sent at the instance of the complainant, but inspite of the receipt of the notice, no amount was paid and according to the complainant the accused has committed the offence punishable u/s.138 of the Negotiable Instruments Act. With the said allegation, the complainant approached the Judicial First Class Magistrate-II, Perumbavoor by filing a formal complaint, upon which cognizance was taken u/s.138 of the Negotiable Instruments Act and instituted C.C.No.1051/2005. During the trial of the case, PW1 was examined from the side of the complainant and Exts.P1 to P9 documents were marked. No evidence adduced from the side of the defence. On the basis of the materials and evidence on record, the trial court has found that the complainant has established the case against the revision petitioner and accordingly convicted her u/s.138 of the Negotiable Instruments Act. On such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment for a period of 6 months and also to pay Crl.R.P.No.1552 of 2009 -: 3 :- compensation of Rs.2,02,000/- and the default sentence is fixed as three months simple imprisonment. 3. Challenging the above conviction and sentence, though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 12.1.2009 in Crl.A.No.468/2008, the Court of Addl. Sessions Judge (Adhoc- I), Ernakulam allowed the appeal only in part and thus while confirming the conviction and the sentence is modified and to pay a compensation of Rs.2,02,000/- to the complainant. It is the above judgments of the courts below are challenged in this revision petition. 4. I have heard the learned counsel appearing for the revision petitioner as well as the respondent and also perused the judgments of the courts below. 5. As this 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, a breathing time may be granted to the revision petitioner to effect the payment. The learned counsel for the respondent also Crl.R.P.No.1552 of 2009 -: 4 :- expressed his no objection in disposing the revision petition, granting time to the revision petitioner to pay the amount. 6. Having regard to the facts and circumstances involved in the case, I am of the view that the revision petitioner can be granted one month time as requested by the counsel for her to effect the payment. 7. At this juncture, it is relevant to note that u/s.138 of the Negotiable Instruments Act, on a finding of conviction either of the penalty contemplated by the section is mandatory. In this case, the trial court on conviction sentenced the revision petitioner to undergo simple imprisonment for a period of 6 months and also directed to pay compensation u/s.357(3) of Cr.P.C. and default sentence is also fixed. But in appeal, the appellate court modified the sentence of imprisonment, in fact it was set aside and issued a direction, directing the revision petitioner to pay the compensation of Rs.2,02,000/- to the complainant and no default sentence was also fixed in case of failure of paying the compensation amount. According to me, the above approach Crl.R.P.No.1552 of 2009 -: 5 :- of the appellate court is not proper and legal in the light of Sec.138 of the Negotiable Instruments Act. So according to me, this revision petition can be disposed of converting the direction to pay compensation into a fine and fixing an appropriate default sentence. It is also relevant to note that no appeal or revision preferred by the complainant against the revision petitioner on the ground of inadequacy of sentence. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner u/s.138 of the Negotiable Instruments Act as recorded by the courts below. Accordingly, the revision petitioner is sentenced to pay a fine of Rs.2,02,000/-, which shall be deposited within one month from today and in case of any failure in paying the fine amount within the stipulated period, the revision petitioner is directed to undergo simple imprisonment for a period of three months. Accordingly the revision petitioner is directed to deposit the fine amount on or before 4th October, 2010. If there is any failure on the part of the revision petitioner in Crl.R.P.No.1552 of 2009 -: 6 :- depositing the fine amount within the above stipulated time, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence and realization of the fine amount. On realization of the fine amount, the entire amount shall be paid to the complainant as compensation u/s.357(1)(b) of Cr.P.C. The coercive steps initiated against the revision petitioner including that of revenue recovery proceedings shall be deferred till 4.10.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, JUDGE. Jvt