IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 23RD SEPTEMBER 2010 / 1ST ASWINA 1932 Crl.Rev.Pet.No. 2741 of 2010(C) -------------------------------------------- [CRL.A.NO.547/2008 OF ADDL. SESSIONS COURTS (ADHOC), MAVELIKKARA, CC.NO.685/2006 OF JUDL.MAGISTRATE OF FIRST CLASS-I, CHENGANNUR] .................... REVISION PETITIONER/APPELLANT IN CRL.A.NO.547/2008/ACCUSED IN C.C.685/2006: -------------------------------------------------------------------------------------------------------------------------- BINDU, D/O.JAGADAMMA, MANAILLKATHIL VEEDU, VALIYAKULANGARA P.O, CHENNITHALA, CHENGANNUR TALUK, ALAPPUZHA. BY ADV. SRI.AJITH MURALI. RESPONDENTS/RESPONDENT NO.1. IN CRL.A.NO.547/2008/COMPLAINANT IN C.C. 685/2006/RESPONDENT NO.2. IN CRL.A.NO.547/2008: ---------------------------------------------------------------------------------------------------------------- 1. RAJAMMA, W/O.GOVINDAN, KOTTAPURATHU VEEDU, THRIPPERUMTHARA, CHENNITHALA, CHENGANNUR TALUK, ALAPPUZHA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. V. TEK CHAND. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2741 of 2010 ------------------------------- Dated this the 23rd 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 borrowed a sum of Rs.35,000/- from the complainant and towards the discharge of the debt due to the complainant, she issued a cheque dated 20.6.2006 for a sum of Rs.35,000/-, 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- Chengannur, by filing a formal complaint, upon which cognizance 2 Crl. R.P.No.2741 of 2010 was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.685/06. During the trial of the case, the complainant herself was mounted to the box and gave evidence as PW1 and Exts.P1 to P5 were marked, from the side of the complainant. 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 also ordered to pay a compensation of Rs.35,000/- to the complainant u/s.357(3) of Cr.P.C. and no default sentence was fixed. 3. Though an appeal was filed, at the instance of the 3 Crl. R.P.No.2741 of 2010 revision petitioner/accused, by judgment dated 7.10.2009 in Crl.A.547/08, the Court of Addl. Sessions Judge Fast Track (Ad hoc)-Mavelikkara, allowed the appeal only in part, confirming the conviction but the sentence imposed against the revision petitioner is modified and reduced to one day simple imprisonment ie., till the rising of the court and while maintaining the order to pay compensation of Rs.35,000/-, the default sentence is fixed as 3 months simple imprisonment. While disposing the appeal, the appellant/revision petitioner was given 6 months time to deposit the compensation amount. 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 4 Crl. R.P.No.2741 of 2010 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 order of conviction recorded by the courts below, the counsel for the revision petitioner submitted that, some breathing time may be granted to pay the compensation amount and it is also the submission of the learned counsel that, the revision petitioner may be permitted to pay the compensation amount directly to the complainant. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered positively but subject to other relevant inputs 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 5 Crl. R.P.No.2741 of 2010 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 20.6.2006, for an amount of Rs.35,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.35,000/-, which belonged to the complainant is with the revision petitioner for the last 4 years. So, one month time can be granted to the revision petitioner 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, while confirming the sentence of imprisonment and the order to pay the compensation amount of Rs.35,000/- to the complainant u/s.357(3) of Cr.P.C., the revision petitioner is granted one month time from today to pay the compensation amount. The default sentence fixed by the court below will attract only if the revision petitioner fails to make the payment of the 6 Crl. R.P.No.2741 of 2010 compensation amount, within the stipulated period fixed by this court. Accordingly, the revision petitioner is directed to appear before the trial court on 23.10.2010, to receive the sentence of imprisonment and to pay the compensation amount and the revision petitioner is free to pay the compensation amount either directly to the complainant or by remitting the same in the trial court, which ever subject to the satisfaction of the learned Magistrate. In case any failure on the part of the revision petitioner in appearing before the court below as directed above and in paying the 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. The coercive steps if any, pending against the revision petitioner shall be deferred till 23.10.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/