IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 26TH JULY 2010 / 4TH SRAVANA 1932 Crl.Rev.Pet.No. 1810 of 2010() ------------------------------------------- CRA.372/2008 of IVTH ADDL. SESSIONS COURT, THODUPUZHA. ST.453/2007 of CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------------------- SAJITHA SUNIL, KAPPIL HOUSE, IRUTTUTHODU, C/O.KUTTAPPAN, PADINJREATHOTTIYIL HOUSE, KOLANI, THODUPUZHA. BY ADV. SRI.N.K.SHYJU RESPONDENT(S): RESPONDENTS/COMPLAINANTS --------------------------------------------------------------------------- 1. ARUNKUMAR A.K., S/O.KRISHNANKUTTY, ANITHA VILAS, VAZHITHALA KARA, PURAPUZHA VILLAGE, THODUPUZHA. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss V.K.MOHANAN, J. - - - - - - - - - - - - - - - - - - - Crl. R.P. No. 1810 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6 th day of September, 2010. J U D G M E N T 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 16.05.2007 for a sum of Rs. 95,000/-(Rupees Ninety five thousand only) which when presented for encashment dishonoured 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 Chief Judicial Magistrate Court, Muttom, Thodupuzha by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted Crl. R.P. No.1810/2010 2 S.T.No.453/2007. During the trial of the case complainant herself was examined as PW1 and Exts.P1 to P5 were marked. On the side of the defense, accused herself examined as DW1 and produced Ext.D1. 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/appellant to undergo simple imprisonment till rising of the court and also directed the revision petitioner to pay compensation of Rs.95,000/-(Rupees Ninety five thousand only) to the complainant u/s.357(3) of Cr.P.C and the default sentence is fixed as 3 months simple imprisonment. Crl. R.P. No.1810/2010 3 3. Aggrieved by the above order of conviction and sentence, the revision petitioner had approached the court below by Judgment dated 31.03.2010 in Crl.Appeal No.372/2008, the Court of the IVth Addl. Sessions Judge (ADHOC-II), Thodupuzha, dismissed the appeal confirming the conviction and sentence imposed against the revision petitioner u/s.138 of Negotiable Instruments Act. As this court is not allowing to interfere the order of conviction, the learned counsel for the revision petitioner submitted that some breathing time may be granted to the revision petitioner to pay the compensation amount. 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 Crl. R.P. No.1810/2010 4 the execution and issuance of the cheque. But no case is made out 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 the revision petitioner is a lady and the sentence imposed by the courts below is highly exorbitant and unreasonable but the same may be set aside. It is also submitted that the revision petitioner is ready to pay the same within a reasonable time. 7. 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 to the fact that the cheque in question is dated 16.05.2007 for an amount of Rs.95,000/- and thus the said amount is with the petitioner Crl. R.P. No.1810/2010 5 for the last 3 years. 8. Going by the records and the findings of the court below, which approved by this court. 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. Considering the above facts and legal position, I am of the view that, the revision petitioner can be ordered to pay a compensation to the complainant u/s.357(3) of Cr.P.C. 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, while maintaining the substantial sentence of imprisonment that till the rising of the court as ordered by the courts below, the revision petitioner is directed to pay a sum of Rs.1,00,000/- (Rupees Crl. R.P. No.1810/2010 6 One lakh only) to the complainant as compensation u/s.357 (3) of Cr.P.C within 3 months from today and in case of any default in paying the amount in time, the revision petitioner is directed to undergo simple imprisonment for a period of 3 months. Accordingly, the revision petitioner is directed to appear before the trial court on 04.12.2010 to receive the sentence of imprisonment and to pay the above amount of compensation. Learned counsel for the revision petitioner submitted that in compliance with the order issued by the lower appellate court while suspending the execution of sentence, the revision petitioner had already deposited a sum of Rs.15,000/- (Rupees Fifteen thousand only) in the trial court. If that be so and the said amount is retained in the trial court, it is made clear that towards the payment of the compensation amount, the revision petitioner need to deposit a further sum of Rs.85,000/-(Rupees Eighty five thousand only). On realisation of the compensation amount, the entire amount shall be given to the complainant as Crl. R.P. No.1810/2010 7 compensation u/s.357(3) of Cr.P.C. In case of any failure on the part of the revision petitioner in appearing before the court below and paying the amount, the trial court is free to take coercive steps against the revision petitioner to executing the sentence and also realize the compensation amount ordered. Criminal revision petition is disposed of accordingly. Sd/- V.K.MOHANAN, Judge. ss/. //True Copy// P.A to Judge