IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 26TH JULY 2010 / 4TH SRAVANA 1932 Crl.Rev.Pet.No. 2177 of 2010() ------------------------------ CRA.157/2008 of ADDL. SESSIONS COURT (ADHOC), THRISSUR ST.5342/2005 of JUDL. MAGISTRTE OF FIRST CLASS COURT-III, THRISSUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- V.SUSHEELA, W/O.VISWANATHAN, "KARTHIKA", M.G.NAGAR, POONKUNNUAM P.O., THRISSUR TALUK. BY ADV. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. ABDUL MUTHALIF, S/O.MUHAMMADALI, CHEENIKKAPARAMBIL HOUSE, KALATHODE DESOM, OLLUKKARA, THRISSUR. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.VENUGOPAL .M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2177 of 2010 ------------------------------------------------- Dated this the 26th day of July, 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, towards the discharge of a debt due to the complainant, issued a cheque dated 18.8.2005 for a sum of Rs. 2,00,000/-(Rupees Two lakhs only) 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 same allegation, the Crl. R.P.No.2177 of 2010 2 complainant approached the Judicial First Class Magistrate Court-III, Thrissur by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.5342/05. During the trial of the case, PW1 was examined from the side of the complainant and Exts.P1 to P5 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 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/appellant to undergo simple imprisonment for 3 month and also Crl. R.P.No.2177 of 2010 3 ordered to pay a fine of Rs.10,000/- and the default sentence is fixed as 1 month simple imprisonment. It is also ordered that on realisation of the fine amount, a sum of Rs.5,000/- shall be paid to the complainant as compensation u/s.357(1) of Cr.P.C. 3. Aggrieved by the above order of conviction and sentence, the revision petitioner had approached the appellate court by filing an appeal, and by judgment dated 28.05.2010 in Crl.Appeal No.157/2008, the Court of Addl. District and Sessions Judge (Fast Track-I) Thrissur, dismissed the appeal confirming the conviction and sentence imposed against the revision petitioner u/s.138 of Negotiable Instruments Act. 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 Crl. R.P.No.2177 of 2010 4 accused/revision petitioner during the trial and appeal, submitted that the 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. The counsel for the revision petitioner submitted that the revision petitioner is a lady and the sentence imposed by the courts below is highly exorbitant and unreasonable. It is also submitted that some breathing time may be granted to the revision petitioner to pay the amount. 7. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered positively. Going by the Crl. R.P.No.2177 of 2010 5 records and the findings of the court below, which approved by this court, a sum of Rs.2,00,000/- which belonged to the complainant is with the revision petitioner for the last 5 years. It is also pertinent to note that the revision petitioner is a woman, who have crossed the age of 53 years. 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 compensatory aspect of the remedy should be given priority over the punitive aspects. Considering the above facts and legal position, I am of the view that, while maintaining the sentence of imprisonment ordered against the revision petitioner the period can be reduced and by setting aside the sentence of fine, the revision petitioner can be ordered to pay a compensation to the complainant u/s.357(3) of Cr.P.C. In the result, this revision petition is disposed of confirming the conviction against the revision petitioner Crl. R.P.No.2177 of 2010 6 u/s.138 of Negotiable Instruments Act as recorded by the trial court as well as the lower appellate court. Accordingly, the sentence of imprisonment ordered against the revision petitioner is modified and reduced to one day simple imprisonment, i.e, till rising of the court. The sentence of fine imposed against the revision petitioner is set aside and on the other hand she is directed to pay a sum of Rs.2,20,000/- (Rupees Two lakhs twenty thousand only) to the complainant as compensation u/s.357(3) of Cr.P.C within 3 months from today and in default she is directed to undergo simple imprisonment for a period of 3 months. The revision petitioner is free to pay the compensation amount as ordered by this court either directly to the complainant or by remitting the same in the trial court, whichever subjected to the satisfaction of the trial court. The revision petitioner is directed to appear before the trial court on 26.10.2010 to receive the sentence and to pay the compensation. In case, of failure on the part of the Crl. R.P.No.2177 of 2010 7 revision petitioner in appearing before the court below, 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. Criminal revision petition is disposed of accordingly. Sd/- V.K.MOHANAN, Judge. ss/ //True copy// P.A to Judge