IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 6TH OCTOBER 2010 / 14TH ASWINA 1932 Crl.Rev.Pet.No. 2808 of 2010 (A) ------------------------------------- CRA.356/2009 of ADDL. SESSIONS COURT (ADHOC-2), THRISSUR ST.1857/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT, WADAKKANCHERY .................... REVN. PETITIONER/APPELLANT/ACCUSED --------------------------------------------------------------- KUMARI, W/O.RAVEENDRAN, ASARIVEETTIL HOUSE, KADANGODE DESOM, THALAPPILLY. BY ADVS. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE --------------------------------------------------------------------------------- 1. SANKARAN, S/O.BHASKARAN, OROMARIYIL HOUSE, MANGAD DESOM, KOTTAPURAM VILLAGE, THALAPPILLY. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR, SMT.P.N.SUMANGALA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2808 of 2010 ------------------------------- Dated this the 6th day of October, 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.70,000/- from the complainant and towards the discharge of the debt due to the complainant, she issued a cheque dated 9.5.2007 for a sum of Rs.70,000/-, which when presented for encashment dishonoured on the grounds “funds insufficient” and “drawer's signature differs” 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.420, 468, 471 of IPC and u/s.138 of Negotiable Instruments Act. With the said allegation, the complainant approached the Judl. First Class Magistrate Court- 2 Crl. R.P.No.2808 of 2010 Wadakkanchery, by filing a formal complaint, but cognizance was taken only u/s.138 of Negotiable Instruments Act and instituted S.T.No.1857/07. During the trial of the case, Pws.1 and 2 were examined and Exts.P1 to P6 were marked, from the side of the complainant. From the side of the defence, Dws.1 and 2 were examined and Exts.D1 to D4 were produced and marked. 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 3 months and to pay a fine of Rs.70,000/- and the default sentence is fixed as 1 month simple imprisonment. It is also ordered that on realisation of the fine amount, the same 3 Crl. R.P.No.2808 of 2010 shall be paid to the complainant as compensation u/s.357(1)(b) of Cr.P.C. 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 21.8.2010 in Crl.A.356/09, the Court of Addl. Sessions Judge (Fast Track-II) (Ad hoc)- Thrissur, allowed the appeal only in part and accordingly while confirming the conviction, the substantive sentence imposed against the revision petitioner is modified and reduced to till the rising of the court. The appellate court confirmed the sentence to pay fine and the compensation awarded by the trial court in favour of the complainant. 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 4 Crl. R.P.No.2808 of 2010 complainant has not established the transaction and also the 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 fine amount. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered positively and while granting some time to pay the fine, the fine amount can be enhanced slightly. 7. 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 5 Crl. R.P.No.2808 of 2010 compensatory aspect of the remedy should be given priority over the punitive aspects. In the present case, the cheque in question is dated 9.5.2007, for an amount of Rs.70,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.70,000/-, which belonged to the complainant is with the revision petitioner for the last 3 years. So, while granting some time to pay the fine, the amount can be enhanced slightly. 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, in suppression of the sentence of imprisonment ordered by the trial court and modified by the appellate court, the sentence is confined to fine only and the fine amount is enhanced to the tune of Rs.80,000/- and the revision petitioner is directed to deposit the fine amount within 3 months from today and in default in paying the fine amount in time, the revision petitioner is directed to undergo simple imprisonment for 3 6 Crl. R.P.No.2808 of 2010 months. Accordingly the revision petitioner is directed to deposit the fine amount on or before 7.1.2011. On realisation of the fine amount, a sum of Rs.70,000/- shall be paid to the complainant as compensation u/s.357(1)(b) of Cr.P.C. and the remaining amount shall be paid to the State Exchequer. In case any failure on the part of the revision petitioner in appearing before the court below as directed above and in paying the 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. Coercive steps if any, pending against the revision petitioner shall be deferred till 7.1.2011. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/