IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 6TH SEPTEMBER 2010 / 15TH BHADRA 1932 Crl.Rev.Pet.No. 1412 of 2010() ---------------------------- CRA.329/2007 of II ADDL. SESSIONS COURT, TRIVANDRUM ST.77/2006 OF JUDICIAL FIRST CLASS MAGISTRATE COURT VIII, THIRUVANANTHAPURAM .................. PETITIONER / APPELLANT / ACCUSED: ------------------------------------------------------ USHA MADHUKUMAR, MADHU MANDIRAM, POORTHIVILA, THIRUPURAM, NEYYATTINKARA, THIRUVANANTHAPURAM. BY ADV. SRI. PIRAPPANCODE V.S. SUDHIR RESPONDENTS / RESPONDENTS / COMPLAINANT & STATE: ------------------------------------------------------------------------------------- 1. R.P.SARAVANAN, TC 11/1857(1), HAPPY HOMES, THILAK NAGAR, NALANCHIRA P.O., THIRUVANANTHAPURAM. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, HIGH COURT OF KERALA, HIGH COURT BUILDING, ERNAKULAM, KOCHI-31. R1 BY ADV. SRI. V. PHILIP MATHEW R2 BY PUBLIC PROSECUTOR SMT. SUMANGALA P.N. THIS CRIMINAL REVISION PETITION HAVING COME FOR ADMISSION ON 06/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1412 of 2010 ------------------------------- Dated this the 6th day of September, 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.1,00,000/- from the complainant and towards the discharge of the said liability, the accused issued a cheque dated 4.2.2004, for a sum of Rs.1,00,000/-, 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 said allegation, the complainant initially approached the Judl. First Class Magistrate Crl. R.P.No.1412 of 2010 2 Court-II, Thiruvananthapuram, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.782/04 and subsequently, the case was made over to the Judl. First Class Magistrate Court-VIII, Thiruvananthapuram, wherein the case is re-numbered as S.T.No.77/06. During the trial of the case, PW1, the complainant himself was examined from the side of the complainant and Exts.P1 to P4 were marked. Though no documentary evidence adduced from the side of the defence, the accused herself was mounted to the box and gave evidence as DW1. 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 Crl. R.P.No.1412 of 2010 3 petitioner to undergo simple imprisonment for 1 month and also directed the revision petitioner to pay a sum of Rs.1,00,000/- to the complainant as compensation u/s.357(3) of Cr.P.C., failing which the revision petitioner was directed to undergo simple imprisonment for 2 months. It is also ordered that, on realisation of the compensation amount, the same shall be given to the complainant u/s.357(3) of Cr.P.C. 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 22.2.2010 in Crl.A.329/07, the Court of Addl. Sessions Judge-II, Thiruvananthapuram, allowed the appeal only in part, confirming the conviction imposed against the accused/revision petitioner by the trial court, but the sentence is modified and the revision petitioner is directed to undergo simple imprisonment till the rising of the court. It is also directed to pay a sum of Rs.1,05,000/- as compensation u/s.357(3) of Cr.P.C. and the entire amount on realisation, is ordered to pay to the complainant and the default sentence is fixed as 1 month simple Crl. R.P.No.1412 of 2010 4 imprisonment. The revision petitioner was also directed to appear before the trial court on 30.3.2010, to receive the sentence imposed and to pay the compensation amount. 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 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 conviction Crl. R.P.No.1412 of 2010 5 recorded by the courts below, the learned counsel for the revision petitioner submitted that, some breathing time may be granted to pay the compensation amount. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered but subject to slight enhancement with regard to the compensation amount. 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 4.2.2004, that too for an amount of Rs.1,00,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.1,00,000/- which belonged to the complainant is with the revision petitioner for the last 6 years. Considering the above facts and settled legal position, I am of the view that, while granting some time to the revision petitioner to pay the compensation amount, the same can be enhanced Crl. R.P.No.1412 of 2010 6 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, while confirming the sentence of imprisonment as modified and refixed by the lower appellate court, the revision petitioner is directed to pay a sum of Rs.1,20,000/- as compensation u/s.357(3) of Cr.P.C., within 3 months from today and in case of default in paying the compensation amount within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for 4 months. Accordingly, the revision petitioner is directed to appear before the trial court on 4.12.2010, to receive the sentence of imprisonment and 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 paying the compensation amount, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to Crl. R.P.No.1412 of 2010 7 execute the sentence awarded against the revision petitioner. The execution of warrant if any, pending against the revision petitioner shall be deferred till 4.12.2010. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/