IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 7TH SEPTEMBER 2010 / 16TH BHADRA 1932 Crl.Rev.Pet.No. 2661 of 2010() --------------------------------------------- CRA.51/2009 of ADDL. SESSIONS JUDGE, (ADHOC COURT NO.I), PALAKKAD ST.96/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT-III, PALAKKAD .................... REVN. PETITIONER(S): 1 ------------------------------------ K.SAJITHA, W/O.JAFER ALI, 2/104, MUTHUSWAMI LINE, NETHAJI NAGAR, ITI, KANJIKODE, CENTRAL PALAKKAD. BY ADV. SRI.P.K.MOHANAN(PALAKKAD) RESPONDENT(S): RESPONDENT/COMPLAINANT. ------------------------------------------------------------------------ 1. SADATH, S/O.HAMZA, VELLUR KAVIL HOUSE, POOCHIRA, PUDUPPARIYARAM, PALAKKAD- 678 733. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM, PIN - 682 031. BY PUBLIC PROSECUTOR SRI.V.TEK CHAND. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: kl. V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2661 of 2010 ------------------------------- Dated this the 7th day of September, 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 borrowed a sum of Rs.75,000/- from the complainant and towards the discharge of the debt due to the complainant, the accused issued a cheque dated 19.9.2007 for a sum of Rs.75,000/-, 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-III, Palakkad, by filing a formal complaint, upon which cognizance was taken Crl. R.P.No.2661 of 2010 2 u/s.138 of Negotiable Instruments Act and instituted S.T.No.96/08. During the trial of the case, the complainant himself was mounted to the box and gave evidence as PW1 and Exts.P1 to P4 were marked, from the side of the complainant. No evidence either oral or documentary adduced from the side of the defence. 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 pay a fine of Rs.75,000/- and the default sentence was fixed as 1 month simple imprisonment. 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 28.5.2010 in Crl.A.51/09, the Court of Addl. Sessions Judge (Ad hoc)-I, Palakkad, dismissed the appeal, confirming the conviction and Crl. R.P.No.2661 of 2010 3 sentence imposed against the revision petitioner. 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 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. As this court is not inclined to interfere with the order of conviction recorded by the courts below, the counsel for the revision petitioner submitted that, some breathing time may be given to the revision petitioner to pay the fine amount. Having regard to the facts and circumstances involved in the case, I am Crl. R.P.No.2661 of 2010 4 of the view that the said submission can be considered but subject to other relevant inputs 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 19.9.2007, for an amount of Rs.75,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.75,000/-, which belonged to the complainant is with the revision petitioner for the last 3 years. So, while granting some time to pay the fine amount, the same can be enhanced slightly. In the result, this revision petition is disposed of confirming the conviction and sentence imposed against the revision petitioner u/s.138 of Negotiable Instruments Act as recorded by the courts below. Accordingly, the fine amount fixed by the courts below is enhanced to the tune of Rs.80,000/- and 3 months time is granted to the revision petitioner to deposit the Crl. R.P.No.2661 of 2010 5 said fine amount. The default sentence fixed by the court below will attract only if the revision petitioner fails to deposit the fine amount, within 3 months from today. Accordingly, the revision petitioner is directed to deposit the above fine amount on or before 7.12.2010. In case any failure on the part of the revision petitioner in paying the 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. If the fine amount is realised, a sum of Rs.77,500/- shall be paid to the complainant as compensation u/s.357(1)(b) of Cr.P.C. and the remaining amount shall be paid to the State Exchequer. The coercive steps if any, pending against the revision petitioner shall be deferred till 7.12.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/