IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 14TH JULY 2010 / 23RD ASHADHA 1932 Crl.Rev.Pet.No. 2087 of 2010() ------------------------------ AGAINST THE ORDER DATED 21/05/2010 IN UNNUMBERED CRL.A. IN CRMP.1400/2009 of SESSIONS COURT, KOLLAM CC.100/2006 of JUDL.MAGISTRATE OF FIRST CLASS-II (FOREST OFFENCES),PUNALUR .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED :- ------------------------------------------------------------------- SOUFI, D/O.ABDUL KHASIM, PUTHEN BUNGLOW(UNION PRINTERS), T.B.JUNCTION,PUNALUR. BY ADV. SRI.M.DINESH RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE :- -------------------------------------------------------------------------------------- 1. C.R.BABU, (RAVEENDRANATHA BABU) S/O.CHELLAPPAN,KOCHUTHUNDIL VEEDU, VILAKKUVATTAM, PUNALUR. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ADV. SRI.K.RAJESH KANNAN FOR R1 PUBLIC PROSECUTOR MR.M.R.VENUGOPAL THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt V.K.MOHANAN, J. ~~~~~~~~~~~~~ Crl.R.P.No.2087 of 2010 ~~~~~~~~~~~~~~~~~ Dated this the 14th 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 towards the discharge of a debt due to the complainant, the accused issued a cheque dated 1.3.2005 for an amount of Rs.1,00,000/-, 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 in spite of a formal demand notice and thus the revision petitioner has committed the offence punishable Crl.R.P.No.2087 of 2010 -: 2 :- u/s.138 of the Negotiable Instruments Act. With the said allegation, the complainant approached the Judicial First Class Magistrate-II (Forest Offences), Punalur by filing a formal complaint, upon which cognizance was taken u/s.138 of the Negotiable Instruments Act and instituted C.C.No.100/2006. During the course of the trial, the complainant himself examined as PW1 and produced Exts.P1 to P6 documentary evidences. Even though there was no defence witness, the accused has produced Ext.D1 letter. 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 Crl.R.P.No.2087 of 2010 -: 3 :- petitioner/accused to undergo simple imprisonment for a period of 3 months and to pay a fine of Rs.1,00,000/- to the complainant and default sentence is fixed as 3 months simple imprisonment. It is also ordered that on realization of the fine amount, the same shall be given to PW1 by way of compensation. 3. Though an appeal was filed, challenging the above conviction and sentence, as the appeal was belated, the Court of Sessions Judge, Kollam by order dated 21.5.2010 in Crl.M.P.No.1400/2009 in the unnumbered Crl.A. dismissed the above petition and consequently the appeal has also dismissed. It is the above judgment of the trial court and order of the lower appellate court are challenged in this revision petition. 4. I have heard the learned counsel appearing for the revision petitioner and also perused the judgment and order of the courts below. 5. The learned counsel for the revision petitioner Crl.R.P.No.2087 of 2010 -: 4 :- submitted that a breathing time may be granted to the revision petitioner to pay the fine amount and also submitted that the revision petitioner being a lady, the sentence of imprisonment may be set aside. 6. 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 subject to other facts and circumstances involved in the case. The cheque in question is dated 1.3.2005 and therefore, as per the records and findings of the trial court which approved by this Court, a sum of Rs.1,00,000/- belonged to the complainant is with the revision petitioner for the last 5 years. It is also relevant to note that the accused/revision petitioner is a lady. 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. Considering the above Crl.R.P.No.2087 of 2010 -: 5 :- facts and circumstances and the above settled legal position, I am of the view that the sentence of imprisonment can be set aside especially the revision petitioner being a lady but at the same time the fine amount fixed by the court below can be enhanced to the tune of Rs.1,15,000/- and some time can be granted to pay the fine. The default sentence can also be enhanced to 4 months simple imprisonment. In the result, this revision petition is disposed of confirming the conviction as recorded by the trial court 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 but the revision petitioner is sentenced to pay a fine of Rs.1,15,000/- within 3 months from today and in case any failure in paying the fine amount within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for 4 months. On realization of the fine amount, a sum of Crl.R.P.No.2087 of 2010 -: 6 :- Rs.1,12,500/- shall be paid to the complainant under Sec.357(1)(b) of Cr.P.C. Accordingly, the revision petitioner is directed to appear before the trial court on 14th October, 2010 to pay the fine amount. In case any failure on the part of the revision petitioner in depositing 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. V.K.MOHANAN, JUDGE. Jvt