IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 9TH JULY 2010 / 18TH ASHADHA 1932 Crl.Rev.Pet.No. 2047 of 2010() ------------------------------ CRA.552/2008 of ADDL. SESSIONS COURT (ADHOC-2), THRISSUR ST.1590/2002 of CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR .................... REVISION PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------------------------------------------- BINDU SOMASUNDARAN, W/O.SOMA SUNDARAM, KARIPPAI (HOUSE), THRISSUR. BY ADV. SRI.C.A.ANOOP RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE: ----------------------------------------------------------------------------------------- 1. K.K.RAJESH KUMAR, S/O.KRISHNANKUTTY, KANIYATH HOUSE, AYYANTHOLE.P.O, THRISSUR. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. B.JAYASURYA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ---------------------------------------- Crl.R.P. No. 2047 of 2010 ---------------------------------------- Dated the 9th Day of July, 2010 ORDER The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the revision petitioner as she is aggrieved by the conviction and sentence imposed against her as per the impugned judgment. 2. The case of the complainant is that an amount of Rs.50,000/- was due to the complainant from the accused and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 4.10.2002 which when presented for encashment, dishonoured as there was no sufficient fund in the account maintained by the accused and the revision petitioner/accused miserably failed to repay the cheque amount in spite of a formal notice issued by him. With the said allegation, the complainant approached the Chief Judicial Magistrate, Thrissur, by filing a formal complaint upon which cognizance was taken under Section CRL.R.P.2047/2010 -:2:- 138 of the N.I.Act and instituted S.T.No.1590/2002. During the course of trial, the complainant himself mounted to the box and adduced oral evidence as PW1. He has also produced Exts.P1 to P6 as documentary evidence. No witness was examined from the side of the defence and no evidence was produced. After evaluation of the evidence and the materials on record, the trial court has found that Ext.P1 cheque was issued towards the discharge of a legally enforceable debt that due to the complainant and accordingly, the trial court held that the complainant has succeeded in establishing the allegation against the revision petitioner-accused and found that the revision petitioner- accused is guilty. Consequently, the accused is convicted under section 138 of the N.I.Act. On such conviction, the trial court sentenced the revision petitioner-accused to undergo simple imprisonment for 3 months and to pay a fine of Rs.60,000/-, in default, she is directed to undergo simple imprisonment for a further period of 3 months. It is also ordered that on realisation of the fine amount, CRL.R.P.2047/2010 -:3:- Rs.55,000/- shall be paid to the complainant as compensation. 3. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused had preferred an appeal, by judgment dated 5.6.2010 in Crl.A.No.552/2008/, the court of Addl. Sessions Judge,Fast Track, (Adhoc-II), Thrissur, allowed the appeal only in part and while confirming the conviction, sentence of imprisonment is modified and the revision petitioner is sentenced to undergo simple imprisonment till the rising of the court. The fine amount ordered by the trial court is also confirmed by the lower appellate court. This Crl.R.P is preferred against the above conviction and sentence. 4. The learned counsel for the revision petitioner fairly submitted that the revision petitioner requires some time to pay the amount. 5. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered favourably, but subject to slight enhancement of the fine amount since an amount of CRL.R.P.2047/2010 -:4:- Rs.50,000/- is with the revision petitioner for the last 8 years and considering the legal position as per the decision of the Apex Court in Damodar S.Prabhu v. Sayed Babalal H (J.T.2010 (4) SC 457), while granting some time to revision petitioner, the amount of fine can be enhanced to the tune of Rs.65,000/-. In the result, this Crl.R.P is disposed of confirming the conviction recorded by the courts below for the offence under section 138 of the N.I.Act . Accordingly, the sentence of imprisonment awarded against the revision petitioner is set aside but she is sentenced to pay a fine of Rs.65,000/- within three months from today and, in default, she is directed to undergo imprisonment for three months. On realisation of the fine amount, a sum of Rs.60,000/- shall be paid to the complainant under section 357(1)(b) Cr.P.C. Accordingly, the revision petitioner is directed to appear before the trial court on 8th October, 2010 to deposit the fine amount. If there is any default on the part of the revision petitioner in appearing before the trial court as directed above, the trial court is free CRL.R.P.2047/2010 -:5:- to take coercive steps against the revision petitioner to secure his presence and for realisation of the amount. This Crl.R.P is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- CRL.R.P.2047/2010 -:6:- O.P.No. JUDGMENT Dated:.. 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. In the light of the above settled legal position and in view of the facts and circumstances referred to above, I am of the view that the sentence of CRL.R.P.2047/2010 -:7:- imprisonment imposed upon the revision petitioner can be reduced to simple imprisonment till the rising of the court and at the same time, he can be sentenced to pay a fine considering the fact that the amount covered by the cheque in question is with the revision petitioner right from 1.12.2004 and also the said amount can be ordered to be paid as compensation to the complaisant under section 357(1)(b) Cr.P.C. In the result, this Crl.R.P is disposed of confirming the conviction recorded by the trial court as well as the lower appellate court for the offence under section 138 of the N.I.Act . The substantive sentence of imprisonment imposed against the revision petitioner is set aside and he is sentenced to pay a fine of Rs.35,000/- and in default he is directed to undergo simple imprisonment for a period of 6 months and on realisation of the fine amount, the same shall be paid to the complainant under section 357(1)(b) Cr.P.C. Accordingly, the revision petitioner is directed to appear before the trial court on 3rd September, 2010. If there is any default on the part of the revision petitioner in appearing before the trial court as directed above, the trial court is free to take coercive steps against the revision petitioner to secure his presence and to execute the sentence and for realisation of the amount. V.K.MOHANAN, JUDGE CRL.R.P.2047/2010 -:8:- kvm/- O.P.No. JUDGMENT Dated:..