IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 15TH JULY 2010 / 24TH ASHADHA 1932 Crl.Rev.Pet.No. 2111 of 2010() ------------------------------ CRA.46/2009 of SESSIONS COURT, KOLLAM ST.22/2007 of JUDL. MAGISTRATE OF FIRST CLASS - III, KOLLAM .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED :- ------------------------------------------------------------------- AMBIKA,AGED 37 YEARS,W/O.MANIKUTTAN, CHARUVILA VEEDU, HOUSE NO.3,NETHAJI NAGAR, KILIKOLLOOR P.O, PUNTHALATHAZHAM. BY ADV. SRI.RAJA VIJAYARAGHAVAN SRI.M.T.SURESHKUMAR RESPONDENT(S)/RESPONDENTS/COMPLAINANT :- ----------------------------------------------------------------------- 1. MOHANAN,PUTHENVILA VEEDU, VADAKKEVILA,KOLLAM, PIN – 691 586. 2. THE STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. PUBLIC PROSECUTOR MR.M.R.VENUGOPAL FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt V.K.MOHANAN, J. ~~~~~~~~~~~~~ Crl.R.P.No.2111 of 2010 ~~~~~~~~~~~~~~~~~ Dated this the 15th day of July 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 the accused/revision petitioner, towards the discharge of a debt due to the complainant, issued a cheque dated 17.6.2004 for an amount of Rs.80,000/-, which when presented for encashment dishonoured for want of 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 the Negotiable Instruments Act. With the said Crl.R.P.No.2111 of 2010 -: 2 :- allegation, the complainant approached the Judicial First Class Magistrate-III, Kollam by filing a formal complaint, upon which cognizance was taken u/s.138 of the Negotiable Instruments Act and instituted S.T.No.22/2007. During the trial of the case, Pws.1 & 2 were examined from the side of the complainant and Exts.P1 to P6 were marked. From the side of the defence Dws.1 and 2 were examined and also produced Exts.D1 to D3 documents. 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 held 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 the Negotiable Instruments Act. On such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment for a period of one month and ordered to pay a fine of Rs.80,000/- to the complainant. The default sentence Crl.R.P.No.2111 of 2010 -: 3 :- is fixed as 10 days simple imprisonment. It is also ordered that on realization of the fine amount, the same shall be paid to the complainant under Sec.357(1) of Cr.P.C. 3. Though an appeal was filed by the accused/revision petitioner challenging the above conviction and sentence, by judgment dated 29.5.2010 in Crl.A.No.46/2009, the court of Sessions Judge, Kollam dismissed the appeal confirming the conviction and sentence imposed by the trial court. It is the above conviction and sentence are 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 Crl.R.P.No.2111 of 2010 -: 4 :- merit in the revision petition and accordingly the conviction was endorsed by the courts below against the revision petitioner u/s.138 of Negotiable Instruments Act. 6. The learned counsel for the revision petitioner submitted that a breathing time may be granted to the revision petitioner to pay the fine amount. 7. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission of the learned counsel can be considered favourably but subject to other facts and circumstances involved in the case. As per the records, a sum of Rs.80,000/- which belonged to the complainant is with the revision petitioner since 17.6.2004. The revision petitioner is a lady, house wife. The Apex Court in the decision in Damodar.S.Prabhu v. Sayed Babalal.H [J.T. 2010 (4) SC 457] has held that in the case of dishonour of cheques, the compensatory aspect of the remedy shall be given preference than the punitive aspect. Therefore, considering the legal position and the other relevant facts which I indicated earlier, I am of the view that Crl.R.P.No.2111 of 2010 -: 5 :- the sentence of imprisonment awarded against the revision petitioner, who is a lady can be set aside and at the same time the fine amount ordered by the court below can be enhanced slightly. In the result, this revision petition is disposed of while confirming the conviction as recorded by the courts below against the revision petitioner under Sec.138 of the N.I.Act. Accordingly the sentence of imprisonment awarded against the revision petitioner is set aside and she is sentenced to pay a fine of Rs.1,00,000/- to the complainant and 3 months time is granted to pay the amount and in case of failure in depositing the fine amount within the above time limit, she is directed to undergo simple imprisonment for a period of one month. On realization of the fine amount, a sum of Rs.97,500/- shall be paid to the complainant under Sec.357 (1)(b) of Cr.P.C. and the remaining amount shall be deposited into state ex-chequer. Accordingly, the revision petitioner is directed to appear before the trial court on 15th October, 2010 to deposit the fine amount. In case any failure on the Crl.R.P.No.2111 of 2010 -: 6 :- part of the revision petitioner in appearing before the trial court as ordered above and in making the deposit 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. The execution of warrant, if any, pending against the revision petitioner shall be deferred till 15.10.2010. V.K.MOHANAN, JUDGE. Jvt