IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 2ND SEPTEMBER 2010 / 11TH BHADRA 1932 Crl.Rev.Pet.No. 2328 of 2010() ------------------------------ CRA.364/2008 of SESSIONS COURT, KASARAGOD CC.296/2008 of JUDICIAL FIRST CLASS MAGISTRATE COURT II,KASARAGOD. .................... REVISION PETITIONER/APPELLANT/ACCUSED: ----------------------------------------------------------------------- PADMAVATHI K.V., W/O.KOTTANKUNHI, RADHAKRISHNA NIVAS, UDUMA POST, HOSDURG TALUK, KADARAGOD. BY ADV. SRI.S.JIJI RESPONDENT(S): COMPLAINANT: ---------------------------------------------------- 1. RAJESH, AGED 32 YEARS, S/O.KUMARAN, NEAR LIGHT HOUSE, KASARAGOD KADAPPURAM, KADARAGOD. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT. SUMANGALA P.N. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2328 of 2010 ------------------------------- Dated this the 2nd 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, towards the discharge of a liability connected with a visa transaction, the accused/revision petitioner issued a cheque dated 17.1.2008 for a sum of Rs.50,000/-, 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 initially approached the Chief Judl. Magistrate Court-Kasaragod, by filing a formal complaint, upon which Crl. R.P.No.2328 of 2010 2 cognizance was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.400/08 and subsequently the case was made over to the Court of Judicial First Class Magistrate-II (Addl. Munsiff), Kasaragod, wherein the case is renumbered as C.C.No.296/08. During the trial of the case, PW1, the complainant himself was examined from the side of the complainant and Exts.P1 to P5 were marked. 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 undergo simple imprisonment for 3 months and to pay a compensation of Rs.50,000/- to the complainant u/s.357(3) of Cr.P.C. and the default sentence is Crl. R.P.No.2328 of 2010 3 fixed as one month simple imprisonment. 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 20.2.2010 in Crl.A.364/08, the Court of Sessions, Kasaragod, allowed the appeal only in part, confirming the conviction against the revision petitioner u/s.138 of Negotiable Instruments Act. The sentence of imprisonment was reduced to one day simple imprisonment ie., till the rising of the court. The compensation amount and the default sentence were confirmed by the appellate court and directed the revision petitioner to appear before the trial court on 24.3.2010. 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 Crl. R.P.No.2328 of 2010 4 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 conviction recorded by the courts below, the learned counsel for the revision petitioner submitted that, some breathing time may be granted to pay the compensation amount and also to permit the revision petitioner to pay the compensation amount directly to the complainant. Having regard to the facts and circumstances involved in the case, 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 dated Crl. R.P.No.2328 of 2010 5 17.1.2008, that too for an amount of Rs.50,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.50,000/- which belonged to the complainant is in the hands of the revision petitioner for the last 2 years. Considering the above facts and legal position, I am of the view that, the sentence of imprisonment and the compensation amount ordered by the appellate court can be confirmed and the revision petitioner can be granted some time to pay the compensation amount. 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 confirming the sentence of imprisonment as revised and refixed by the appellate court, the revision petitioner is directed to pay the compensation amount as fixed by the courts below, within one month from today and in case of default in paying the compensation amount, the revision petitioner is directed to undergo simple imprisonment for 1 month. Accordingly, the revision petitioner is directed to appear before Crl. R.P.No.2328 of 2010 6 the trial court on 4.10.2010, to receive the sentence of imprisonment and to pay the compensation amount as directed by this court. The revision petitioner is free to pay the compensation amount either directly to the complainant or by remitting the same in the trial court, which ever subject to the satisfaction of the learned Magistrate. In case any failure on the part of the revision petitioner in appearing before the court below as directed above and in making the payment of compensation 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 4.10.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/