IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 23RD JUNE 2010 / 2ND ASHADHA 1932 Crl.Rev.Pet.No. 1889 of 2010() ------------------------------------ CRA.1086/2008 of addl.dist. & Sessions Judge fast Trac (adhoc – II) kozhikode, ST.1366/2007 of Special Judicial Ist Class Magistrate (Marad case), Kozhikode. .................... REVN. PETITIONER(S): REVN.PETITIONER/APPELLANT/ACCUSED ------------------------------------------------------ SUNITHA DEVI.P.K,AGED 37 YEARS, D/O.GOPALAN,PEON ENGINEERING SECTION,CORPORATION OFFICE,KOZHIKODE. BY ADV. SRI.T.B.SHAJIMON SMT.GOVINDU P.RENUKADEVI RESPONDENT(S): COMPLAINANT & STATE ------------------------------------------------------------ 1. C.VIMALKUMAR,AGED 49 YEARS, S/O.LATE SUGATHAN,CHEROTE HOUSE,C.S.ROAD, CHAKKORATHUKULAM,NADAKKAVU POST, KOZHIKODE,PIN-673011. 2. STATE OF KERALA REP;BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA. PUBLIC PROSECUTOR MR. VENUGOPAL M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1889 of 2010 ------------------------------- Dated this the 23rd day of June, 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 24.9.2007 for a sum of Rs.50,000/-, which when presented for encashment dishonoured 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 complainant approached the Court of Special Judicial First Class Magistrate (Marad Cases), Kozhikode, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.948/06. During the trial of the case, Crl. R.P.No.1889 of 2010 2 PW1 was 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 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 till rising of the court and to pay a sum of Rs.50,000/- to PW1 as compensation u/s.357(3) of Cr.P.C. The default sentence is fixed as 2 months simple imprisonment. 3. In appeal, at the instance of the revision petitioner/ accused by judgment dated 1.3.2010 in Crl.A.1086/08, the appeal is dismissed, by the Court of Addl. District & Sessions Crl. R.P.No.1889 of 2010 3 Judge, Fast Track (Ad hoc-II), Kozhikode and confirmed the conviction and the sentence passed by the trial court, against the revision petitioner u/s.138 of Negotiable Instruments Act. Accordingly, the revision petitioner is directed to undergo simple imprisonment till rising of the Court and to pay a sum of Rs.50,000/- to PW1 as compensation u/s.357(3) of Cr.P.C. and in default of payment of compensation, he is directed to undergo simple imprisonment for a further period of 2 months. 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 execution and issuance of the cheque. But no case is made out to interfere with the concurrent findings of the trial court as well Crl. R.P.No.1889 of 2010 4 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, some breathing time may be granted to deposit the compensation amount. I am of the view that the said submission can be considered favourably but subject to other relevant materials and circumstances 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 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 24.9.2007, for an amount of Rs.50,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.50,000/- is in the hands of the revision petitioner for the last more than 2 ½ Crl. R.P.No.1889 of 2010 5 years. Considering the above facts and legal position, I am of the view that, while retaining the sentence of imprisonment, the compensation amount and the default sentence can be enhanced slightly and 3 months 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, the revision petitioner is directed to undergo simple imprisonment till the rising of the court and he is directed to pay a sum of Rs.52,500/- to the complainant as compensation u/s.357(3) of Cr.P.C. and in case of default in paying the compensation, the revision petitioner is directed to undergo simple imprisonment for 3 months. Accordingly, the revision petitioner is directed to appear before the trial court on 23.9.2010 to pay the compensation 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 Crl. R.P.No.1889 of 2010 6 depositing 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 execution of warrant, if any, pending against the revision petitioner shall be deferred till 23.9.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/