IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 27TH JULY 2010 / 5TH SRAVANA 1932 Crl.Rev.Pet.No. 2244 of 2010() ------------------------------ CRA.570/2007 of ADDL. SESSIONS COURT, THRISSUR ST.1794/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, THRISSUR .................... REVISION PETITIONER(S): APPELLANT/ACCUSED: ---------------------------------------------------------------------------- KAVITHA.P.V., D/O. VIJAYAN, POVATHINGAL HOUSE, PANAMUCK DESOM, KANIMANGAAM VILLAGE, NEDUPUZHA.P.O, THRISSUR. BY ADV. SRI.V.BINOY RAM RESPONDENT(S): RESPONDENTS:COMPLAINANT: --------------------------------------------------------------------------- 1. MUKESH.K.B., S/O. BHASKARAN, KODAPARAMBIL HOUSE, KANNAMKULANGARA DESOM, KOORKANCHERY VILLAGE, P.O., THRISSUR. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. C.M. NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2244 of 2010 ------------------------------- Dated this the 27th 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, towards the discharge of a debt due to the complainant, issued a cheque dated 10.11.2004 for a sum of Rs.54,000/-, 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-I, Thrissur, by filing a formal complaint, upon which cognizance was taken Crl. R.P.No.2244 of 2010 2 u/s.138 of Negotiable Instruments Act and instituted S.T.No.1794/05. During the trial of the case, PW1, the complainant himself was examined from the side of the complainant and Exts.P1 to P8 were marked. From the side of the defence, DW1 was examined and no documentary evidence adduced. 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 her 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 her u/s.138 of Negotiable Instruments Act. On such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment for 1 month and to pay a compensation of Rs.54,000/- to the complainant u/s.357(3) of Cr.P.C. and the default sentence is fixed as 1 month simple imprisonment. 3. Though an appeal was filed at the instance of the Crl. R.P.No.2244 of 2010 3 revision petitioner/accused, by judgment dated 9.6.2010 in Crl.A.570/07, the Court of 1st Addl. Sessions Judge, Thrissur, allowed the appeal only in part. Thus while confirming the conviction of the revision petitioner u/s.138 of Negotiable Instruments Act, the revision petitioner is directed to undergo imprisonment till rising of the court and to pay a compensation of Rs.54,000/- to the 1st respondent u/s.357(3) of Cr.P.C. and in default to undergo simple imprisonment for 15 days. Accordingly the revision petitioner was directed to appear before the trial court on 20.7.2010. 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. 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 Crl. R.P.No.2244 of 2010 4 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. 6. The counsel for the revision petitioner submitted that, some breathing time may be granted to deposit the compensation amount. I am of the view that the said submission can be considered but subject to other relevant materials and circumstances involved in the case. 7. 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 10.11.2004, for an amount of Rs.54,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.54,000/-, which belonged to the Crl. R.P.No.2244 of 2010 5 complainant is in the hands of the revision petitioner for the last 6 years and also the accused is a lady. Considering the above facts and legal position, I am of the view that, while maintaining the sentence of imprisonment as ordered by the lower appellate court, the revision petitioner can be granted 3 months time to pay the compensation amount but with slight enhancement in the amount. 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 revision petitioner is directed to undergo simple imprisonment till rising of the court and she is also directed to pay compensation of Rs.57,000/- to the complainant u/s.357(3) of Cr.P.C., within 3 months from today and in case of default in paying the compensation amount, the revision petitioner is directed to undergo simple imprisonment for 3 months. Accordingly, the revision petitioner is directed to appear before the trial court on 27.10.2010 to receive the sentence of Crl. R.P.No.2244 of 2010 6 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 making the payment of fine 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. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/