IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 20TH JULY 2010 / 29TH ASHADHA 1932 Crl.Rev.Pet.No. 2074 of 2010() ------------------------------------------- CRA.459/2004 of ADDL. SESSIONS COURT (ADHOC-I), THALASSERY ST.2974/2003 of JUDL. MAGISTRATE OF FIRST CLASS COURT, THALASSERY .................... REVN. PETITIONER/APPELLANT/ACCUSED --------------------------------------------------------------- K. YESODA, 'KUMARS', VELLACHAL, MAKRERI.P.O, VIA PERALASSERY, KANNUR. BY ADV. SRI.V.V.ASOKAN, SRI.P.P.RAMACHANDRAN. RESPONDENTS/RESPONDENTS/COMPLAINANT/STATE --------------------------------------------------------------------------------- 1. E.M. HARINDRAN, S/O.SANKARAN, GURUPRABHA, PERUMTHATTIL.P.O, THALASSERY, NOW RESIDING AT GURUPRABHA, KARINKAVAPULY.P.O, PALAKKAD. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY PUBLIC PROSECUTOR MR.C.M. NAZAR. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20/07/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. V.K.MOHANAN, J. ---------------------------------------- Crl.R.P. No. 2074 of 2010 ---------------------------------------- Dated the 20th Day of 2010 ORDER The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the revision petitioner as she is aggrieved by the conviction and sentence imposed against her as per the impugned judgment. 2. The case of the complainant is that an amount of Rs.80,000/- was due to the complainant from the accused and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 21.2.2003 which when presented for encashment, dishonoured as there was no sufficient fund in the account maintained by the accused and the revision petitioner/accused miserably failed to repay the cheque amount in spite of a formal notice caused to issue by him. With the said allegation, the complainant approached the court of Judicial First Class Magistrate, Thalassery by filing a formal complaint upon which CRL.R.P.2074/10 -:2:- cognizance was taken under Section 138 of the N.I.Act and instituted S.T.Case No.2974/2003. During the course of trial, the complainant himself mounted to the box and adduced oral evidence as PW1. He has also produced Exts.P1 to P6 as documentary evidence. No evidence adduced from the side of the defence. After evaluation of the evidence and the materials on record, the trial court has found that Ext.P1 cheque was issued towards the discharge of a legally enforceable debt that due to the complainant and accordingly, the trial court held that the complainant has succeeded in establishing the allegation against the revision petitioner- accused and found that the revision petitioner-accused is guilty. Consequently, the accused is convicted under section 138 of the N.I.Act. On such conviction, the trial court sentenced the revision petitioner-accused to undergo simple imprisonment for a period of one month and also directed the accused to pay a sum of Rs.80,000/- to the complainant as compensation under section 357(3) Cr.P.C. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused CRL.R.P.2074/10 -:3:- preferred an appeal, by judgment dated 30.4.2010 in Crl.A.No.459/2004, the court of Addl. Sessions Judge, (Adhoc- I), Thalassery, dismissed the appeal confirming the conviction and sentence. 3. Reiterating the contention taken by the defence during the trial and appellate stages, the learned counsel submitted that the complainant has not established the transaction, execution and issuance of the cheque and therefore, the courts below are absolutely wrong in convicting the revision petitioner-accused imposing sentence against her. The trial court as well as the lower appellate court has concurrently found in favour of the complainant and against the revision petitioner-accused. Though the revision petitioner is heard elaborately, nothing is brought out to take a different view by interfering with the concurrent findings of the courts below. All the contentions are based upon the facts and evidence on record which were elaborately considered by the courts below. Therefore, I find no reason to interfere with such concurrent finding of the courts below and accordingly, the conviction CRL.R.P.2074/10 -:4:- recorded by the courts below is confirmed. 4. 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 the revision petitioner/accused is an old aged lady and therefore, lenient view may be taken in question of the sentence and some time may be granted to pay the amount. 5. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered favourably, but subject to other facts and circumstances involved in the case. The cheque in question is dated 21.2.2003, that too, for an amount of Rs.80,000/-. The trial court as well as the lower appellate courts have found which approved by this Court that the said amount is belonged to the complainant and thus for the last 7 years, a sum of Rs.80,000/- is with the revision petitioner. In the light of the fact that the revision petitioner/accused is a lady who is now at the age of 60 years and also a widow and considering the settled legal position as per the decision of the Apex Court in CRL.R.P.2074/10 -:5:- Damodar S.Prabhu v. Sayed Babalal H (J.T.2010 (4) SC 457), I am of the view that the sentence of imprisonment ordered by the courts below can be modified and reduced to one day simple imprisonment , i.e., till the rising of the court and at the same time, the amount of compensation fixed by the court below can be enhanced slightly. In the result, this Crl.R.P is disposed of confirming the conviction of the revision petitioner for the offence under section 138 of the N.I.Act as recorded by the courts below and in modification of the sentence of imprisonment ordered by the courts below and reducing the same, the revision petitioner is sentenced to undergo simple imprisonment for one day , i.e. till the rising of the court and she is further directed to pay a sum of Rs. 1,00,000/- (Rs. one lakh only) to the complainant within three months from today as compensation. and in case of any default in paying the amount within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for three months. Accordingly, the revision petitioner is directed to appear before the trial court on 20.10.2010 to receive the CRL.R.P.2074/10 -:6:- sentence and for payment of compensation. The revision petitioner is free to pay the compensation to the complainant/first respondent either directly or by remitting the same in the court which ever subject to the satisfaction of the trial court. If there is any default on the part of the revision petitioner in appearing before the trial court as directed above, the trial court is free to take coercive steps against the revision petitioner to secure her presence and to execute the sentence and for realisation of the amount. The Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/-