IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 21ST MAY 2010 / 31ST VAISAKHA 1932 Crl.Rev.Pet.No. 1588 of 2010() ------------------------------ CRA.554/2007 of II ADDL.SESSIONS COURT, KOLLAM CC.626/2004 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOLLAM ................................ REVN. PETITIONER: --------------------- SHEEBA .S, W/O.DINESH THEACHER, MUTTOM P.S, MUTTOM P.O., HARIPPADU, ALAPPUZHA DISTRICT RESIDING AT KANDAKKARA KIZHAKKATHIL, MUTTOM PO, HARIPPAD ALAPPUZHA DISTRICT. BY ADV. SRI.C.RAJENDRAN RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. 2. G.RAMACHANDRAN NAIR, RESIDING AT INDU BHAVAN, VADAKKUMKARA KIZHAKKE CHERRY, UMAYANALLOOR P.O.,KOLLAM. R1 BY P.P. SMT. M.K.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ----------------------------------- Crl.R.P. No. 1588 of 2010 ----------------------------------- Dated 21st Day of May, 2010 ORDER The challenge in this Crl.R.P is against the judgment dated 20.2.2010 in Crl.Appeal No.554/ 2007 of the Court of 2nd Addl. Sessions Judge, Kollam and the judgment dated 18.8.2007 in C.C.No.626/2004 of the Judicial First Class Magistrate Court-II, Kollam. By the above judgments, the courts below convicted and sentenced the revision petitioner-accused under section 138 of the Negotiable Instruments Act. 2. The allegation against the revision petitioner, who is a lady, is that she had borrowed an amount of Rs.75,000/- on 9.11.2003 and in order to discharge the said liability, she issued a cheque dated 6.1.2004 for the same amount. According to the complainant, when the above cheque presented for encashment, it was dishonoured on the ground of insufficient funds in the account maintained by the accused. As the cheque in question was dishonured, Crl.R.P.1588/10 -:2:- the complainant approached the trial court by filing a complaint, after complying with the statutory formalities, which was received on file and cognizance was taken and instituted C.C.No.626/2004. During the trial of the case, PW1 was examined from the side of the complainant and produced Exts.P1 to P6 documents. Though no document was produced from the side of the defence, one witness was examined as DW1. The trial court as well as the lower appellate court found that the complainant has established the offence against the accused punishable under section 138 of the N.I.Act. Accordingly, the trial court convicted the accused/revision petitioner under section 138 of the Negotiable Instruments Act and she is sentenced to undergo simple imprisonment for 40 days and to pay an amount of Rs.85,000/- as compensation to the complainant under section 357(3) Cr.P.C. It was also ordered that if the compensation amount is not paid, the accused is to undergo default sentence of simple imprisonment for a further period of 40 days. Aggrieved by the above conviction and sentence, the revision Crl.R.P.1588/10 -:3:- petitioner had preferred Crl.Appeal No.554/2007 and by judgment dated 20.2.2010, the lower appellate court dismissed the appeal confirming the conviction of the lower appellate court but subject to certain modification with respect to the sentence. Accordingly, the sentence is modified and the appellant is sentenced to pay the cheque amount of Rs.75,000/- as fine and in case of default in making the payment, it is further directed to undergo simple imprisonment for 5 days. The sentence of simple imprisonment for 40 days awarded by the trial court is reduced to imprisonment till the rising of the court. It is the above conviction and sentence challenged in this Crl.R.P. 3. I have heard the learned counsel for the revision petitioner and also perused the judgment of the trial court as well as the lower appellate court. 4. From the judgments of the courts below, it appears that the complainant has established his case beyond reasonable doubt by producing the cheque in question executed and issued by the accused from his possession. Crl.R.P.1588/10 -:4:- The execution and issuance of the cheque is admitted by the accused. The only defence taken by the accused is to the effect that there was no transaction between the accused and the complainant and that the amount was borrowed by the husband of the accused from the complainant and not by her and it is also her contention that the actual amount borrowed by the husband of the revision petitioner-accused is only Rs.20,000/-. Though such a contention was taken, no evidence is adduced from the side of the defence to substantiate the same. The Apex Court has held time and again that mere denial of execution and issuance of the cheque is not sufficient to discharge the burden of the accused in a prosecution for the offence under section 138 of the N.I.Act especially when the complainant has established his case, who is entitled to get the presumption under section 139 of the N.I.Act. In the present case, as indicated above, the cheque in question was signed, executed and issued by the revision petitioner, but her specific allegation is that there were certain loan transaction between Crl.R.P.1588/10 -:5:- her husband and the complainant and the cheque was issued in connection with that loan transaction. When the revision petitioner-accused admits the signature, execution and issuance of the cheque, it is heavily upon the revision petitioner to substantiate the plea that there was no transaction between herself and the complainant and the transaction was actually between the complainant and the husband of the revision petitioner. In this connection, no evidence was adduced. From the attendant circumstances and the admitted facts, it appears that the parties are not strangers. Under the above factual background and when the revision petitioner-accused failed to substantiate her defence, by producing any materials, I find no illegality or wrong with the judgments of the trial court as well as the lower appellate court so as to interfere with the concurrent finding on facts. Therefore, there is no merit in the Crl.R.P and the conviction imposed against the revision petitioner is only to be confirmed and I do so. 6. The learned counsel appearing for the revision Crl.R.P.1588/10 -:6:- petitioner submitted that considering the contention raised by the revision petitioner-accused, some modification may be made with respect to the sentence, and a breathing time may be granted. I have carefully considered the above submission of the learned counsel for the revision petitioner. The revision petitioner-accused is a lady, who is working as a teacher in a Government School. It is also relevant to note that the alleged transaction was taken place on 9.11.2003, more than 7 years back. 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. On a consideration of the above decision and application of the same in the present case, I am of the view that while confirming the conviction of the revision petitioner under section 138 of the N.I.Act, the sentence of imprisonment awarded by the lower appellate court can be maintained. But the sentence of fine amount fixed by the trial court can be enhanced to the tune Crl.R.P.1588/10 -:7:- of Rs.85,000/- and the default sentence can be enhanced to one month simple imprisonment, and on realization of the fine amount, the same shall be directed to be paid to the complainant under section 357(3) Cr.P.C. In the result, this Crl.R.P is disposed of confirming the conviction of the revision petitioner under section 138 of the N.I.Act as recorded by the trial court as well as the lower appellate court. Accordingly, the revision petitioner/accused is sentenced to undergo simple imprisonment till the rising of the court and she is also sentenced to pay a fine of Rs.85,000/- and if the said amount is realised, the same shall be paid to the complainant under Section 357(3) Cr.P.C and in case of default in paying the amount, she is directed to undergo simple imprisonment for a further period of one month. Accordingly, the revision petitioner is directed to appear before the trial court on 30.8.2010 to receive the sentence of imprisonment and to make the payment of fine as directed above. In case of default on the part of the revision petitioner in appearing before the court below as Crl.R.P.1588/10 -:8:- directed above, the trial court is free to take coercive steps against the revision petitioner to procure her presence and to execute the sentence and for realization of the amount. The Crl.R.P is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- Crl.R.P.1588/10 -:9:- V.K.MOHANAN, J. O.P.No. JUDGMENT Dated:..