IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 1ST JULY 2010 / 10TH ASHADHA 1932 Crl.Rev.Pet.No. 1629 of 2010() ------------------------------ CRA.176/2007 of SESSIONS COURT, KALPETTA STC.267/2006 of JUDL.MAGISTRATE OF FIRST CLASS-II, MANANTHAVADY .................... REVN. PETITIONER(S): --------------------- VANAJA, W/O.VASU, CLERK, T.D.O.OFFICE, MANANTHAVADY BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENT(S): --------------- 1. ROY PHILIP, S/O.THOMAS PHILIP, POONTHOPPIL HOUSE, ARATTITHARA.P.O, MANANTHAVADY 2.THE STATE OF KERALA, REP: BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM R2 BY P.P.SRI.VENUGOPAL.M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ----------------------------- Crl.R.P.No.1629 of 2010 --------------------------------- Dated this the 1st day of July 2010 O R D E R The accused, who is a lady, in a prosecution for an offence u/s.138 of the 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 a debt due to the complainant, issued a cheque dated 24.12.2005 for Rs.1,89,000/-, which when presented for encashment dishonoured for want of sufficient fund in the account maintained by the accused and the cheque amount was not repaid in spite of a formal demand notice and thus the revision petitioner has committed the offence punishable u/s.138 of the Negotiable Instruments Act. With the said Crl.R.P.No.1629 of 2010 : 2 : allegation, the complainant approached the Judicial First Class Magistrate-II, Mananthavady by filing a formal complaint, upon which cognizance was taken u/s.138 of the Negotiable Instruments Act and instituted S.T.C.No.267/2006. During the trial of the case, Pws.1 and 2 were examined from the side of the complainant and Exts.P1 to P6 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 held 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 the Negotiable Instruments Act. On such conviction, the trial court sentenced the revision petitioner/accused to suffer simple imprisonment for a Crl.R.P.No.1629 of 2010 : 3 : period of 6 months and also directed to pay a sum of Rs.1,89,000/- to the complainant as compensation under Sec.357(3) of Cr.P.C. and the default sentence is fixed as 3 months simple imprisonment. Though the revision petitioner had preferred an appeal, by judgment dated 30.1.2010 in Crl.A.No.176/2006, the Court of Sessions, Wayanad allowed the appeal only in part confirming the conviction but the default sentence is modified. It is the above conviction and sentence challenged in this revision petition. 3. The learned counsel for the revision petitioner submitted that a lenient view may be taken in the matter of sentence. I am of the view that the said submission can be considered favourably but subject to other relevant materials and facts involved in the case. As per the findings of the court below which approved by this Court, a sum of Rs.1,89,000/- is with the revision petitioner for the last 5 years. The Apex Court in the decision in Crl.R.P.No.1629 of 2010 : 4 : Damodar.S.Prabhu v. Sayed Babalal.H [J.T. 2010 (4) SC 457] has held that in the case of dishonour of cheques, the compensatory aspect of the remedy shall be given preference than the punitive aspect. It is also relevant to note that the revision petitioner is a lady, who is at the age of 48 years and a government servant. Hence, I am of the view that the sentence of imprisonment can be set aside whereas the amount of compensation fixed by the court below can be enhanced slightly, fixing the same as fine and also the default sentence fixed by the trial court can be restored. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner under Sec.138 of the N.I.Act as recorded by the courts below. Accordingly, while setting aside the sentence of imprisonment ordered by the courts below against the revision petitioner, she is sentenced to pay a fine of Rs.1,97,500/- and in default she is directed to undergo Crl.R.P.No.1629 of 2010 : 5 : simple imprisonment for 3 months. On realization of the fine amount, a sum of Rs.1,95,000/- shall be paid to the complainant under Sec.357(1)(b) of Cr.P.C. Accordingly, the revision petitioner is directed to appear before the trial court on 1st October, 2010 to pay the fine 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 deposit 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 coercive steps, if any, taken against the petitioner shall be kept in abeyance till 1.10.2010. V.K.MOHANAN, JUDGE. Jvt