IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 11TH AUGUST 2010 / 20TH SRAVANA 1932 Crl.Rev.Pet.No. 2327 of 2010() ------------------------------ CRA.171/2008 of ADDL. DISTRICT & SESSIONS COURT (ADHOC I), KOZHIKODE STC.1119/2006 of JUDL.MAGISTRATE OF FIRST CLASS-I, THAMARASSERY .................... PETITIONER/APPELLANT/ACCUSED: ------------------------------------------------------ NAJMA,D/O.ERANHITHARAYIL ABDUL HAMEED, 'SHA MANZIL', KODUVALLY PO, KOZHIKODE. BY ADVS. SRI.JAYKAR.K.S., SRI.ARUN.B.VARGHESE, SRI.SREEJITH S.NAIR. RESPONDENT(S): RESPONDENT/COMPLAINANT: -------------------------------------------------------------------------- 1. SABIRA,D/O.KUNHAYAINKUTTY, THOOVAKKUNNUMMAL HOUSE,KIZHAKKOTH AMSOM, KOTHARAMMAL DESOM, KOZHIKODE. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. VENUGOPAL.M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2327 of 2010 ------------------------------- Dated this the 11th 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.1,00,000/- from the complainant and towards the discharge of the debt due to the complainant, she issued a cheque dated 31.1.2006 for a sum of Rs.99,100/-, 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-I, Thamarassery, by filing a formal Crl. R.P.No.2327 of 2010 2 complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.1119/06. During the trial of the case, PW1, the complainant herself was examined from the side of the complainant and Exts.P1 to P8 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 6 months and to pay a sum of Rs.1,00,000/- to the complainant as compensation u/s.357(3) of Cr.P.C. 3. Though an appeal was filed, at the instance of the Crl. R.P.No.2327 of 2010 3 revision petitioner/ accused, by judgment dated 12.5.2009 in Crl.A.171/08, the Court of Addl. District & Sessions Judge (Fast Track Court) (Ad hoc-I), Kozhikode, dismissed the appeal, confirming the conviction and sentence of the revision petitioner u/s.138 of Negotiable Instruments Act. 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 Instruments Act, is approved. Crl. R.P.No.2327 of 2010 4 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, the sentence imposed by the courts below is exorbitant and unreasonable and therefore the same is liable to be set aside and it is also submitted by the counsel that some breathing time may be granted to deposit the compensation 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 dated 31.1.2006, for an amount of Rs.99,100/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.99,100/-, which belonged to the complainant is in the hands of the revision petitioner for the last 4 Crl. R.P.No.2327 of 2010 5 years. Both the complainant and the revision petitioner are ladies. Considering the above facts and legal position, I am of the view that, the sentence of imprisonment can be reduced as the revision petitioner is a lady, whereas the compensation amount can be enhanced slightly so as to safe guard the interest of the complainant and the revision petitioner can be granted 3 months 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, the sentence of imprisonment ordered against the revision petitioner by the courts below is modified and reduced to one day simple imprisonment ie., till rising of the court and she is also directed to pay sum of Rs.1,20,000/- as compensation to the complainant 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 3 months. Accordingly, the revision petitioner is directed to Crl. R.P.No.2327 of 2010 6 appear before the trial court on 11.11.2010, 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/