IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 7TH OCTOBER 2008 / 15TH ASWINA 1930 Crl.Rev.Pet.No. 3333 OF 2008() ------------------------------ CRA.470/2008 OF ADDL. SESSIONS COURT-(ADHOC-II), ERNAKULAM ST.162/2007 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-IV, KOCHI .................... REVN. PETITIONER/APPELLANT/ACCUSED: ------------------------------ MRS. LISSY VARGHESE, W/O. VARGHESE, PROPRIETRIX, UKKAN’S CARDS AND GIFTS (UKKAN PAPER AND CARD GALARY), 2ND FLOOR, CITY CENTRE, TRICHUR. BY ADV. SRI.SIBY MATHEW SRI.PHILIP J.VETTICKATTU RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: -------------------------- 1. MOHAMMED BABU, PROPRIETOR, ISMAIL TRADING COMPANY, 42/2285 GROUND FLOOR, TATAPURAM SUKUMARAN ROAD, PROVIDENCE ROAD, NORTH END, ERNAKULAM, KOCHI. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVEENDRA BABU FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/10/2008 ALONG WITH CRL.R.P.3334 OF 2008 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3333 OF 2008, CRL.R.P. NO. 3334 OF 2008, CRL.R.P. NO. 3335 OF 2008 AND CRL.R.P. NO. 3336 OF 2008 ------------------------------------------ Dated this the 7th day of October, 2008 O R D E R Petitioner was convicted for the offence under section 138 of Negotiable Instruments Act in S.T.122 of 2007, S.T.159 of 2007, S.T.160 of 2007 and S.T.162 of 2007 by Judicial First Class Magistrate- IV, Kochi. Though petitioner challenged the conviction and sentence in Crl. Appeals 470 of 2008, 471 of 2008, 472 of 2008 and 473 of 2008, learned Sessions, Judge, Ernakulam confirmed the conviction and sentence and dismissed the appeals. The revision petitions are filed challenging the conviction and sentence. Crl. Revision Petition 3333 of 2008 is against the conviction in S.T.162 of 2007 as confirmed in Crl. Appeal 470 of 2008. Crl. Revision Petition 3334 of 2008 is against the conviction in S.T.160 of 2007 as confirmed in Crl. Appeal 472 of 2008. Crl. Revision Petition 3335 of 2008 is against the conviction in S.T.159 of 2007 as confirmed in Crl. Appeal 471 of 2008. Crl. Revision Petition 3336 of 2008 is CRRP3333,3334,3335 & 3336/08, 2 against the conviction in S.T.122 of 2007 as confirmed in Crl. Appeal 473 of 2008. First respondent is the complainant in all the cases. S.T. 122 of 2007 relates to Exts.P1 to P3 cheques respectively for Rs.5,000/- each issued by the petitioner in her account maintained in Thrissur branch of UCO Bank. The cheques were issued as the Proprietrix of M/s. Ukkens Cards and Gifts, Thrissur. S.T.159 of 2007 relates to Exts.P4 to P6 cheques which are also drawn in the same Bank and in the same capacity for Rs.5,000/- each. S.T.160 of 2007 relates to Exts.P7 to P9 cheques for rs.5,000/- each drawn in the same Bank and in the same capacity. S.T.162 of 2007 relates to Ext.P10 cheque for Rs.5,000/- drawn in the same account by the petitioner. All the cheques were issued in favour of first respondent. When the cheques were presented for encashment, through the account of the first respondent maintained in ICICI Bank, the cheques were dishonoured under Exts.P11 to P20 for want of sufficient funds as it exceeds the arrangement. Exts.P21 to P30 lawyer notices served on the petitioner under Ext.P31 series of acknowledgement cards. First respondent demanded the amount covered by the respective cheques by the said notices. Petitioner did not pay the amount. The complaints were lodged CRRP3333,3334,3335 & 3336/08, 3 thereafter. Petitioner pleaded not guilty. Learned Magistrate on the evidence of first respondent as PW1 and Exts.P1 to P32 found the petitioner guilty and convicted and sentenced her in each of the cases. In S.T.122 of 2007 she was convicted and sentenced to simple imprisonment for one month and also a fine of Rs.15,000/- and in default, simple imprisonment for ten days, providing that on realisation of fine, it is to be paid to the first respondent as compensation. In S.T. 159 of 2007, she was convicted to simple imprisonment for one month, in addition to fine of Rs.15,000/- and in default, simple imprisonment for ten days with a direction to pay the fine on realisation to first respondent as compensation. In S.T.160 of 2007 she was sentenced for simple imprisonment for one month and a fine of Rs.15,000/- and in default, simple imprisonment for ten days and on realisation of the fine to pay the same as compensation to first respondent. In S.T.162 of 2007 she was sentenced to simple imprisonment for one month and a fine of Rs.5,000/- and in default simple imprisonment for ten days providing that on realisation of fine it is to be paid to first respondent as compensation. Though petitioner challenged the conviction and sentence, on reappreciation of the evidence learned Sessions CRRP3333,3334,3335 & 3336/08, 4 Judge confirmed the same. The convictions and sentences are challenged in these revisions. 2. Learned counsel appearing for petitioner submitted that petitioner is not challenging the conviction. It was submitted that sentence awarded are harsh and it may be modified. The learned counsel submitted that the proprietary concern is indebted to the Bank and the Bank has taken steps for realisation of the debts under the Securitisation Act and it is in such circumstances petitioner could not pay the amount and she may be granted reasonable time to pay the fine. 3. So long as the sentence is not modified or varied as against, the interest of first respondent, it is not necessary to issue notice to him. 4. The defence taken at the time of evidence was that cheque leaves were stolen by the representative of the first respondent and the cheques were not issued by the petitioner for discharge of debts. It was contended that though there were transactions with the first respondent, the transactions were closed by paying the entire amount and so she did not commit the offences. Learned Magistrate appreciated the evidence of PW1 and found that Ext.P1 to P10 cheques were issued towards CRRP3333,3334,3335 & 3336/08, 5 discharge of her legally recoverable debt. Learned Sessions Judge reappreciated the evidence and confirmed the finding. There is no reason to interfere with the factual findings. Evidence also establish that all the cheques were dishonoured, as arrangement with the Bank exceeds the amounts covered by the dishonoured cheques. Evidence also establish that first respondent has complied with all the statutory formalities under section 138 and 142 of Negotiable Instruments Act. In such circumstances, conviction of the petitioner for offence under section 138 in all the cases is perfectly legal and correct. 5. Then the question is whether the sentence awarded is reasonable or excessive. Exts.P1 to P10 cheques together is for Rs.50,000/-. The learned Magistrate in addition to the fine amount of Rs.50,000/- sentenced petitioner to undergo simple imprisonment for one month each in the four cases. Considering the facts and circumstances of the cases, interest of justice will be met if the sentence is modified to fine with default sentence providing adequate compensation to first respondent. The revisions are allowed in part. Conviction is confirmed. The sentence awarded in S.T.122 of 2007 is modified to a fine of Rs.17,000/- and in default simple imprisonment for 30 days. On CRRP3333,3334,3335 & 3336/08, 6 realisation of the fine, Rs.16,000/- is to be paid to first respondent as compensation under section 357(1) of Cr.P.C. In S.T. 159 of 2007 petitioner is sentenced to a fine of Rs.17,000/- and in default simple imprisonment of 30 days. On realisation of the fine, Rs.16,000/- is to be paid to first respondent as compensation under section 357(1) of Cr.P.C. In S.T.160 of 2007 petitioner is sentenced to a fine of Rs.17,000/- and in default simple imprisonment for 30 days. On realisation of the fine, Rs.16,000/- is to be paid to first respondent as compensation under section 357(1) of Cr.P.C. In S.T. 162 of 2007 petitioner is sentenced to a fine of Rs.8,000/- and in default simple imprisonment for 10 days. On realisation of the fine, Rs.6,000/- is to be paid to first respondent as compensation under section 357(1) of Cr.P.C. Petitioner is granted two months time from today to pay the fine amount in all the cases. M. SASIDHARAN NAMBIAR, JUDGE Okb/-