IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 4TH JUNE 2010 / 14TH JYAISTHA 1932 Crl.Rev.Pet.No. 1716 of 2010() ------------------------------ CRA.254/2009 of ADDL.SESSIONS COURT, KOTTAYAM ST.1270/2008 of JFCM-V Court, Kottayam .................... REVN. PETITIONER: ACCUSED ---------------------------- ALIZABATH MATHAI, D/O. MATHEW AGED 39, KINATTUKARA HOUSE, NALUNNAKKAL.P.O. VAKATHANAM, KOTTAYAM, NOW WORKING AS TEACHER, C.M.S.L.P.S. NALUNNAKKAL, VAKATHANAM, KOTTAYAM. BY ADV. SRI.R.MURALEEKRISHNAN RESPONDENTS: COMPLAINANT -------------------------- 1. BANK OF INDIA, KOTTAYAM BRANCH, REP. BY ITS BRANCH MANAGER, O.N.SHASHIDAHRAN SENIOR MANAGER. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.PUSHPALATHA.M.K THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1716 of 2010 ------------------------------- Dated this the 4th day of June, 2010. O R D E R Aggrieved by the order of conviction and sentence imposed against the revision petitioner, who faced the trial for the offence u/s.138 of Negotiable Instruments Act, the accused preferred this revision petition. 2. The case against the revision petitioner is that, she had availed a loan of Rs.50,000/- from the complainant Bank during the year 2002 and towards the discharge of the said liability, she had issued the cheque in question, which when presented for encashment dishonoured as there was no sufficient fund in the account maintained by the accused. Consequent to the dishonour of the cheque, the complainant caused to sent a notice informing the revision petitioner regarding the dishonour of the cheque and further demanding her to pay the amount covered by the cheque. But no amount was paid and therefore she is liable to be punished u/s.138 of Negotiable Instruments Act. With the above allegation, a formal complaint was filed Crl. R.P.No.1716 of 2010 2 upon which cognizance was taken and instituted S.T.No.1270/08 in Court of Judicial First Class Magistrate-V, Kottayam. During the trial of the above case, PW1 was examined from the side of the complainant and produced Exts.P1 to P6. No evidence was adduced from the side of the defence. Based upon the materials and evidence on record, the trial court has found that the complainant has made out the case and the revision petitioner/accused failed to rebut the presumption. Accordingly, the trial court convicted the revision petitioner u/s.138 of Negotiable Instruments Act and sentenced her to undergo simple imprisonment for 2 months and also directed to pay the cheque amount of Rs.64,637/- to the complainant as compensation u/s.357(3) of Cr.P.C. and the default sentence is fixed as 15 days simple imprisonment. Though an appeal was filed by the revision petitioner, by the judgment dated 5.11.2009 in Crl.A.254/09, the Addl. Sessions Court, Kottayam allowed the appeal only in part and while confirming the conviction, the sentence was modified and reduced the same till the raising of Crl. R.P.No.1716 of 2010 3 the court and the order to pay the compensation was sustained. It was also directed that, in case of default in paying the compensation, the revision petitioner has to undergo simple imprisonment for 15 days after the mandatory recovery of the fine u/s.421 of Cr.P.C. Accordingly, the revision petitioner was directed to appear before the court below on 4.5.2010 to receive the sentence and 6 months time was granted to pay the compensation amount. It is the above judgments of the courts below and the conviction and sentence challenged in this revision petition. 3. I have heard the learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. 4. On hearing the arguments of the learned counsel and on perusal of the judgments of the courts below it appears that, the only contention raised by the revision petitioner is to the effect that the cheque in question is, one of the several blank cheque leaves entrusted with the complainant, towards the Crl. R.P.No.1716 of 2010 4 security of the loan transaction, at the time of availing the loan. The above contention is not sustainable in the light of the decision of this court, whereby it has held that the offence u/s.138 of Negotiable Instruments Act will attract, even if the cheque in question entrusted with the complainant by the accused is a blank one, given as a security for the transaction. In the present case, from the materials and evidence referred to by the courts below, it can be seen that admittedly there was a transaction between the complainant and the revision petitioner. The above fact is not controverted. If that be so, the finding arrived on by the courts below are perfectly legal and valid and such a concurrent finding of the trial court as well as the lower appellate court are not liable to be interfered with, in exercising the revisional jurisdiction of this court, especially, when the revision petitioner is failed to make out a case. Therefore there is no merit in the revision petition. 5. The learned counsel for the revision petitioner submitted that, the revision petitioner is a lady working as a teacher and Crl. R.P.No.1716 of 2010 5 therefore in the matter of sentence, a lenient view may be taken and some time may be granted to the revision petitioner to pay the compensation. 6. Having regard to the facts and circumstances involved in the case, I am of the view that the said prayer can be considered favourably. 7. The revision petitioner is a lady working as a teacher and she implicated in the above case, as there was a lapse on her part in paying the monthly installment connected with the loan transaction. 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. It has to be noted that both the trial court as well as the lower appellate court, while inflicting the sentence of imprisonment, the default sentence has also stipulated, on a failure on the part of the accused in paying the compensation. The Apex Court in the decision in Ahammedkutty Vs. Crl. R.P.No.1716 of 2010 6 Abdullakoya {2008(1) KLT 851(SC)}, has held that, no default sentence can be stipulated, due to the failure on paying the compensation fixed u/s.357(3) of Cr.P.C. On a humanly consideration of the above facts and the settled legal position, I am of the view that instead of imposing the sentence of imprisonment upon the revision petitioner, she can be sentenced to pay fine of an amount equivalent to the cheque amount and in case failure to pay the fine amount, the default sentence can be fixed and thereby also can secure, the payment of the fine amount and also compensation to the complainant. In the result, this criminal revision petition is disposed of confirming the conviction of the revision petitioner u/s.138 of Negotiable Instruments Act, as recorded by the trial court as well as the lower appellate court. While setting aside the sentence of imprisonment, awarded against the revision petitioner by the courts below, she is sentenced to pay a fine of Rs.70,000/- and in default, she is directed to undergo simple imprisonment for a period of 3 months and on realisation of the fine amount, a sum Crl. R.P.No.1716 of 2010 7 of Rs.68,000/- shall be paid to the complainant u/s.357(1)(b) of Cr.P.C. Accordingly, the revision petitioner is directed to appear before the trial court on 6.9.2010, to make the payment towards the fine amount and in case any failure in appearing before the court below as directed above and in making the payment, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence awarded against her. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/