IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 22ND JUNE 2010 / 1ST ASHADHA 1932 Crl.Rev.Pet.No. 1843 of 2010() ------------------------------------- CRA.92/2008 of II ADDL.SESSIONS COURT, KOLLAM CC.1475/2004 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOLLAM ............................................................................ - REVN. PETITIONER(S): APPELLANT/ACCUSED: ---------------------------------------------------------------- G.VIMALAKUMARI, D/O.HARIDAS, THAYYILVEEDU, MERA NAGAR, MUNDAKKAL, KOLLAM FROM KOLLITHODIYIL, THEKKEVILA P.O., KOLLAM. BY ADV. SRI.T.A.SHAJI RESPONDENT(S): COMPLAINANT & STATE: ------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. 2. CHUMBALATHA, RAJALAYAM WEST CHERRY, UMAYANALLOOR, MAYYANAD, KOLLAM. PUBLIC PROSECUTOR MR. VENUGOPAL M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1843 of 2010 ------------------------------- Dated this the 22nd day of June, 2010. O R D E R The accused in prosecution for an offence u/s.138 of Negotiable Instruments Act is the revision petitioner, who 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 for Rs.2 lakhs, 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 same allegation, the complainant approached the Judicial First Class Magistrate Court-II, Kollam, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.1475/04. During the trial of the case, PW1 was examined from the side of the complainant and Exts.P1 to P6 Crl. R.P.No.1843 of 2010 2 were marked. From the side of the defence DW1 was examined and Ext.D1 was also marked. 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 him u/s.138 of Negotiable Instruments Act. On such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment for 4 months and to pay a fine of Rs.2,25,000/- and on realisation of the same shall paid as compensation to the complainant u/s.357 (1) of Cr.P.C. The default sentence is fixed as 4 months imprisonment. 3. In appeal, at the instance of the revision petitioner/ accused in Crl.A.92/08, by judgment dated 12.3.2010 in the IInd Addl. Sessions Judge, Kollam, confirmed the conviction of the Crl. R.P.No.1843 of 2010 3 revision petitioner u/s.138 of Negotiable Instruments Act. Whereas the sentence is modified and the revision petitioner is directed to pay only a sum of Rs.2 lakhs as fine and sentenced to undergo imprisonment till rising of the court. The default sentence is reduced and fixed as 7 days simple imprisonment. 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 Crl. R.P.No.1843 of 2010 4 Instruments Act, is confirmed. 6. The counsel for the revision petitioner submitted that some breathing time may be granted to deposit the fine 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 for an amount of Rs.2 lakhs. Thus as per the records, as on today and the findings of the courts below, which approved by this court, a sum of Rs.2 lakhs belonged to the complainant is in the hands of the revision petitioner for the last 2 ¾ years. Considering the above facts and legal position, I am of the view that the sentence of imprisonment can be set aside Crl. R.P.No.1843 of 2010 5 but the fine amount ordered by the courts below can be enhanced and the revision petitioner can be granted 3 months time to pay the fine amount. In the result, this revision petition is disposed of confirming the conviction against the revision petitioner u/s.138 of Negotiable Instruments Act and the sentence of imprisonment as ordered against the revision petitioner is set aside and she is sentenced to pay a fine of Rs.2,15,000/- and in default she is directed to undergo simple imprisonment for a period of 7 days, as fixed by the lower appellate court. On realisation of the fine amount, the same shall be paid to the complainant u/s.357(1)(b) of Cr.P.C. Accordingly, the revision petitioner is directed to appear before the trial court on 22.9.2010 to pay the fine 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 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 Crl. R.P.No.1843 of 2010 6 against the revision petitioner. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/