IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 12TH AUGUST 2010 / 21ST SRAVANA 1932 Crl.Rev.Pet.No. 1739 of 2010() ------------------------------ CRA.335/2007 of ADDL. SESSIONS COURT (ADHOC)-II, PALAKKAD ST.1984/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PALAKKAD .................... REVISION PETITIONER/APPELLANT/ACCUSED: ----------------------------------------------------------------------- MARY ANCEL KAPPAN,KAPPIL HOUSE, KARUR P.O.,PALA,KOTTAYAM DISTRICT. BY ADV. SRI.S.RAJEEV RESPONDENT(S): COMPLAINANTS: ------------------------------------------------------ 1. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. N.R.RAMAMOOROTHY, S/O.K.R.RAMACHANDRAN,LALASA, AISWARYA COLONY,OLAVAKKODE,PALAKKAD TALUK, PALAKKAD DISTRICT. R1 BY PUBLIC PROSECUTOR SRI. VENUGOPAL.M.R. R2 BY ADV. SRI.P.K.MOHANAN(PALAKKAD) THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1739 of 2010 ------------------------------- Dated this the 12th day of August, 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 the accused/revision petitioner borrowed a sum of Rs.3,00,000/- from the complainant and towards the discharge of the liability that arose out of the business transaction, she issued a cheque dated 1.9.2004 for a sum of Rs.3,39,270/-, 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 approached the Judl. First Class Magistrate Court- Crl. R.P.No.1739 of 2010 2 II, Palakkad, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.1984/05. During the trial of the case, PW1, the complainant himself was examined from the side of the complainant and Exts.P1 to P4(a) were marked. Though no document is produced from the side of the defence, the accused herself mounted to the box and gave evidence as DW1. 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 1 year and to pay a sum of Rs.3,39,270/-, to the complainant as compensation u/s.357(3) of Cr.P.C., within one month from the Crl. R.P.No.1739 of 2010 3 date of the impugned order and the default sentence was fixed as 4 months simple imprisonment. 3. In appeal, at the instance of the revision petitioner/ accused, by judgment dated 13.8.2009 in Crl.A.335/07, the Court of Addl. Sessions Judge (Fast Track Court No.II), Palakkad, allowed the appeal only in part, confirming the conviction of the revision petitioner u/s.138 of Negotiable Instruments Act and reducing the sentence to simple imprisonment till rising of the court and directing to pay a sum of Rs.3,50,000/- as compensation to the complainant u/s.357(3) of Cr.P.C. and the default sentence was fixed as 4 months 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 Crl. R.P.No.1739 of 2010 4 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 Instruments Act, is approved. 6. As this court is not inclined to interfere with the order of conviction recorded by the courts below, the counsel for the revision petitioner submitted that, some breathing time may be granted to deposit the compensation amount. 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 slight enhancement with respect to the compensation amount, since the cheque amount is due from 1.9.2004. 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 Crl. R.P.No.1739 of 2010 5 compensatory aspect of the remedy should be given priority over the punitive aspects. In the present case, the cheque in question is dated 1.9.2004, that too for an amount of Rs.3,39,270/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.3,39,270/-, which belonged to the complainant is in the hands of the revision petitioner for the last 6 years. 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 modified and fixed by the lower appellate court, the revision petitioner is directed to pay a sum of Rs.3,65,000/- to the complainant as compensation u/s.357(3) of Cr.P.C., within 3 months from today and in case of default in paying the compensation amount, the revision petitioner is directed to undergo simple imprisonment for 4 months. Accordingly, the revision petitioner is directed to appear before the trial court on Crl. R.P.No.1739 of 2010 6 12.11.2010, to receive the sentence of imprisonment and to pay the compensation 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 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. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/