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. 2488 of 2010() ------------------------------ CRA.622/2008 of ADDL.SESSIONS COURT (ADHOC)-II, KOTTAYAM ST.1641/2006 of JUDL.MAGISTRATE OF FIRST CLASS - I, ETTUMANUR .................... REVISION PETITIONER/APPELLANT/ACCUSED: ---------------------------------------------------------------------- P.N.RAJAMMA, PROPRIETOR, MANJU TAILORS, CHRAIYIL PALLY BUILDINGS, ETTUMANOOR. BY ADVS. SRI.JOMY GEORGE, SRI.M.J.BENNY, SRI.SEBASTIAN THOMAS. RESPONDENT(S): RESPONDENTS/COMPLAINANT/STATE: -------------------------------------------------------------------------------------- 1. K.C.SUBRAMANYAN, USHES HOUSE, PEROOR ROAD, ETTUMANOOR. 2. STATE OF KERALA, REPRESENTED BY ITS 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.2488 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 the accused/revision petitioner towards the discharge of her liability due to the complainant, issued a cheque dated 23.9.2006 for a sum of Rs.40,000/-, 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 approached the Judl. First Class Magistrate Court-II, Ettumanoor, by filing a formal complaint, upon which cognizance was taken Crl. R.P.No.2488 of 2010 2 u/s.138 of Negotiable Instruments Act and instituted S.T.No.1641/06. During the trial of the case, PW1, the complainant himself was examined from the side of the complainant and Exts.P1 to P6 were marked. From the side of the defence, the accused herself was examined as DW1 and no documentary evidence adduced. 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.43,000/- to the complainant u/s.357(3) of Cr.P.C., failing which the revision petitioner was directed to undergo simple imprisonment for 2 months. Crl. R.P.No.2488 of 2010 3 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 16.10.2009 in Crl.A.622/08, the Court of Sessions Judge, Kottayam Division, allowed the appeal only in part, while confirming the conviction, the substantive sentence is reduced to one day simple imprisonment ie., till the rising of the court and the order to pay compensation is converted into fine and accordingly directed the revision petitioner to pay a sum of Rs.40,000/- as fine and in default to undergo simple imprisonment for 2 months. It is also ordered that on realisation of the fine amount, the same shall be given to the complainant as compensation u/s.357(1)(b) of Cr.P.C. 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 Crl. R.P.No.2488 of 2010 4 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 conviction recorded by the courts below, the learned counsel for the revision petitioner submitted that some breathing time may be granted to pay the fine 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 other facts 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 23.9.2006, that too for an amount of Rs.40,000/-. Thus as per Crl. R.P.No.2488 of 2010 5 the records and the findings of the courts below, which approved by this court, a sum of Rs.40,000/- which belonged to the complainant is in the hands of the revision petitioner for the last 4 years. Considering the above facts and legal position, I am of the view that the revision petitioner can be granted 3 months time to pay the fine amount but subject to slight enhancement with respect to the fine 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 as revised and refixed by the court below is confirmed. Whereas the fine amount ordered by the courts below is enhanced to the tune of Rs.45,000/-, which shall be paid by the revision petitioner, within 3 months from today and in case of default in paying the fine amount within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for 2 months. Accordingly, the revision petitioner is directed to appear before the trial court on 2.12.2010, to receive the sentence of Crl. R.P.No.2488 of 2010 6 imprisonment and to pay the fine amount as directed by this court. On realisation of the fine amount, a sum of Rs.43,500/- shall be paid to the complainant as compensation u/s.357(1)(b) of Cr.P.C. and the remaining amount shall be paid to the State Exchequer. 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 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. The execution of warrant if any, pending against the revision petitioner shall be deferred till 2.12.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/