IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 29TH SEPTEMBER 2010 / 7TH ASWINA 1932 Crl.Rev.Pet.No. 2823 of 2010() ------------------------------ CRA.238/2009 OF 3RD ADDL. SESSIONS COURT (ADHOC-I), THODUPUZHA CC.793/2006 of JUDL. FIRST CLASS MAGISTRATE COURT, KATTAPPANA .................. REVN. PETITIONER / APPELLANT / ACCUSED: ---------------------------------------------------------------- ELSY ANTONY, ST.ANTONEY'S GAS AGENCIES, NEAR POLICE STATION, VADUTHALAKUNNEL HOUSE, ADIMALY P.O. BY ADVS. SRI.ELVIN PETER P.J. SMT.POOJA SURENDRAN RESPONDENTS / COMPLAINANTS: ---------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KEALA ERNAKULAM. 2. BABY VARGHESE, THERAMBIL HOUSE, KATTAPPANA KARA, IDUKKI DISTRICT – 690 001. R1 BY PUBLIC PROSECUTOR SRI. V. TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn V.K.MOHANAN, J. ------------------------------------------ Crl.R.P. No. 2823 of 2010 ---------------------------------------- Dated the 29th Day of September, 2010 ORDER The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the revision petitioner as she is aggrieved by the conviction and sentence imposed against him as per the impugned judgment. 2. The case of the complainant is that the accused borrowed an amount of Rs.3,00,000/- from the complainant and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 5.10.2005 which when presented for encashment, dishonoured for the reason 'account closed' and the revision petitioner/accused miserably failed to repay the cheque amount in spite of a formal notice caused to issue by him. With the said allegation, the complainant approached the court of Judicial First Class Magistrate, Kattappana, by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted C.C.No.793/2006. During the course of trial, PWs 1 and 2 were examined and produced Exts.P1 to P7 as documentary evidence. From the side of the defence, no evidence, DW1 was examined and produced Exts.D1 to D9 documents. After evaluation of the evidence CRL.R.P 2823/10 -:2:- and the materials on record, the trial court has found that Ext.P1 cheque was issued towards the discharge of a legally enforceable debt that due to the complainant and accordingly, the trial court held that the complainant has succeeded in establishing the allegation against the revision petitioner-accused and found that the revision petitioner-accused is guilty. Consequently, the accused is convicted under section 138 of the N.I.Act. On such conviction, the trial court sentenced the revision petitioner-accused to undergo simple imprisonment for a period of three months and to pay compensation of Rs.3,00,000/- to the complainant under section 357(3) Cr.P.C. The default sentence is fixed as simple imprisonment for a period of one month. 3. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 23.2.2010 in Crl.A.No.238/2009, the court of 3rd Addl. Sessions Judge, (Adhoc-1), Thodupuzha allowed the appeal only in part. Thus, while confirming the conviction of the revision petitioner under section 138 of the NI Act, the sentence is modified and reduced to imprisonment till rising of the court and while maintaining the direction to pay compensation, as ordered by the trial court, the default sentence is enhanced to simple imprisonment for three months, and the revision petitioner was also directed to appear before the trial court on CRL.R.P 2823/10 -:3:- 24.5.2010 to receive the modified sentence. It is the above judgments of the trial court as well as the lower appellate court challenged in this Crl.R.P. 4. Reiterating the contention taken by the defence during the trial and appellate stages, the learned counsel submitted that the complainant has not established the transaction, execution and issuance of the cheque and therefore, the courts below are absolutely wrong in convicting the revision petitioner-accused imposing sentence against him. The trial court as well as the lower appellate court has concurrently found in favour of the complainant and against the revision petitioner-accused. Though the revision petitioner is heard elaborately, nothing is brought out to take a different view to interfere with the concurrent findings of the courts below. All the contentions are based upon the facts and evidence on record which were elaborately considered by the courts below. Therefore, I find no reason to interfere with such concurrent finding of the courts below and accordingly, the conviction recorded by the courts below is confirmed. 5. As this court is not inclined to interfere with the conviction, the learned counsel submitted that a breathing time may be granted to the revision petitioner to pay the compensation amount. It is also submitted that the sentence imposed is unreasonable. CRL.R.P 2823/10 -:4:- 6. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered favourably, but subject to slight enhancement in the compensation amount. The revision petitioner is a lady. The cheque in question is dated 5.10.2005 that too for an amount of Rs.3,00,000/- The Apex Court, in its recent decision in Damodar S.Prabhu v. Sayed Babalal H (J.T.2010 (4) SC 457), has held that in a case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. Therefore, in the light of the above legal position, I am of the view that in supersession of the sentence of imprisonment ordered by the courts below, the revision petitioner can be sentenced to pay fine only. The fine amount can be fixed by taking into account the fact that the cheque is dated 5.10.2005, that too for an amount Rs.3,00,000/, which belongs to the complainant and the same is with the revision petitioner for the last 5 years. In the result, this Crl.R.P is disposed of confirming the conviction of the revision petitioner recorded by the courts below for the offence under section 138 of the N.I.Act. Accordingly, the sentence of imprisonment fixed by the trial court and modified by the appellate court is set aside and the revision petitioner is sentenced to pay fine CRL.R.P 2823/10 -:5:- and the fine amount is fixed as Rs.3,50,000/- which shall be paid within three months from today and in case of any default in paying the above amount within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for three months. Accordingly the revision petitioner is directed to deposit the fine amount on or before 29th December, 2010 . If there is any default on the part of the revision petitioner in depositing the fine amount before the trial court as directed above, the trial court is free to take coercive steps against the revision petitioner to secure his presence and to execute the sentence and for realisation of the amount. On realisation of the fine amount, a sum of Rs.3,45,000/-(Rs.Three lakhs and fourty five thousand only) shall be paid to the complainant under section 357(1(b) of Cr.P.C. and the remaining amount shall be deposited in the State Exchequer. Coercive steps, if any, pending against the revision petitioner shall be deferred till 29.12.2010 This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- CRL.R.P 2823/10 -:6:- kvm/-