IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 8TH JUNE 2010 / 18TH JYAISTHA 1932 Crl.Rev.Pet.No. 1549 of 2010() ------------------------------ CRA.62/2009 of SESSIONS COURT, KASARAGOD CC.583/2007 of JUDL.MAGISTRATE OF FIRST CLASS-I, HOSDRUG .................... REVN. PETITIONER(S): APPELLANT ------------------------------ SAINABA PUZHAKARA, AGED 51 YEARS, D/O. MOOSA, R/AT OTTAPADA, P.O. PERUMBATTA, HOSDURG TALUK. BY ADVS. SRI.T.B.SHAJIMON SMT.GOVINDU P.RENUKADEVI RESPONDENT(S): COMPLAINANT ---------------------------------------------- 1. A.T. PRAMOD, AGED 29 YEARS, S/O. KUNHIRAMAN, R/AT ORI, P.O. KAITHAKKAD, CHERUVATHUR VIA, HOSDURG TALUK. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV.SRI.M.R.VENUGOPAL, PUBLIC PROSECUTOR. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ami/ V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1549 of 2010 ------------------------------- Dated this the 8th day of June, 2010. O R D E R Aggrieved by the judgment of the trial court as well as the lower appellate court, the accused in a prosecution for the offence u/s.138 of Negotiable Instruments Act, preferred this revision petition. 2. The case of the complainant is that the accused/ revision petitioner borrowed a sum of Rs.1,50,000/- from the complainant and towards the discharge of the said liability, the accused/revision petitioner issued a cheque dated 4.12.2006, which when presented for encashment dishonoured for want of sufficient fund in the account maintained by the accused. According to the complainant, though a lawyer notice was sent demanding the money, the same was not paid and hence the revision petitioner had committed the offence u/s.138 of Negotiable Instruments Act. With the above allegation a formal complaint was filed, which was received on file as C.C.No.583/07 in the Court of Judicial First Class Magistrate-I, Crl. R.P.No.1549 of 2010 2 Hosdurg. During the trial, the complainant himself was examined as PW1 and he had produced Exts.P1 to P6. No evidence adduced from the side of the defence. The trial court on the basis of the available materials found that, Ext.P1 cheque was issued by the accused towards the discharge of a legally enforceable debt due to the complainant and accordingly after extending the benefit of S.139 of Negotiable Instruments Act, in favour of the complainant, the trial court found that the revision petitioner is guilty and he is convicted and sentenced to undergo simple imprisonment for 6 months and to pay compensation of Rs.1,50,000/- to PW1 and the default sentence is fixed as 3 months simple imprisonment. Against the said verdict, conviction and sentence, the revision petitioner preferred Crl.A.No.62/09 and by judgment dated 16.3.2010 of the Court of Session, Kasaragod, disposed the appeal confirming the conviction, after making certain modification with respect to the sentence. It is the above judgments of the courts below had challenged in this revision petition. 3. I have heard the learned counsel for the revision Crl. R.P.No.1549 of 2010 3 petitioner and also perused the judgments of the courts below. 4. On hearing the arguments of the learned counsel and on perusal of the judgments of the courts below, it appears that the revision petitioner/accused has admitted the transaction, execution and issuance of the cheque, though not as claimed by the complainant. According to the revision petitioner, she had purchased certain gold ornaments from the complainant and at that time she issued a blank signed cheque as security and thereafter she had paid off the entire amount but the complainant has not returned the cheque and the same is misused for filing the present complaint. The trial court as well as the lower appellate court has found that, no evidence is adduced to substantiate such plea of the accused/revision petitioner. When the revision petitioner/accused admitted the transaction and issuance of the cheque, even though not as claimed by the complainant, it is for the accused/revision petitioner to convince the court by establishing a probable case that, the cheque in question was issued connected with the transaction claimed by the revision petitioner. But in the present case, the revision Crl. R.P.No.1549 of 2010 4 petitioner has miserably failed to establish her case and thereby failed to rebut the presumption available in favour of the complainant. The above findings on facts are recorded by the trial court as well as the lower appellate court. Such a concurrent finding on facts are not liable to be interfered with, while exercising the revisional jurisdiction of this court, unless there is any illegalities or irregularities. Therefore there is no merit in the revision petition. 5. The learned counsel for the revision petitioner submitted that a breathing time may be granted to the revision petitioner to make the payment of compensation. According to me, the said submission of the learned counsel for the revision petitioner can be considered favourably but subject to the relevant facts and circumstances involved in the case. 6. In the present case the cheque is dated 4.12.2006 for an amount of Rs.1,50,000/-. Going by the said facts, the only conclusion that can be drawn is that, an amount of Rs.1,50,000/- belong to the complainant, is in the hands of the revision petitioner for the last 3 ½ years. It is also relevant to note that, Crl. R.P.No.1549 of 2010 5 though the trial court awarded imprisonment of 6 months, the lower appellate court reduced the same into imprisonment till the raising of the court. But both the courts ordered a sum of Rs.1,50,000/- as compensation u/s.357(3) of Cr.P.C. and the default sentence fixed, on failure of the revision petitioner to make the compensation. 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 another decision in Ahammedkutty Vs. Abdullakoya {2008(1) KLT 851(SC)}, the apex court has held that no default sentence can be imposed in case of failure to pay compensation fixed u/s.357(3) of Cr.P.C. In the light of the above settled legal position and all the relevant facts referred above, I am of the view that the sentence of imprisonment imposed by the court below can be set aside and the amount of compensation fixed by the courts below can be enhanced and the same can be directed to pay as fine. In the result, this criminal revision petition is disposed of Crl. R.P.No.1549 of 2010 6 confirming the conviction, recorded by the trial court as well as the lower appellate court. The sentence of imprisonment awarded against the revision petitioner is set aside but she is sentenced to pay a fine of Rs.1,60,000/- and in default she is directed to undergo simple imprisonment for 6 months and on realisation of the fine amount, the entire amount shall be paid to the complainant u/s.357(1)(b) of Cr.P.C. Accordingly, the revision petitioner/accused is directed to appear before the trial court on 8.9.2010. In case of any failure on the part of the revision petitioner in appearing before the court below as directed above and depositing 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. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/