IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 13TH AUGUST 2010 / 22ND SRAVANA 1932 Crl.Rev.Pet.No. 2381 of 2010() ------------------------------ CRA.115/2009 of 3RD ADDL. SESSIONS COURT (ADHOC I), THODUPUZHA ST.38/2008 of CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA .................... REVISION PETITIONER/APPELLANT/ACCUSED: ----------------------------------------------------------------------- MOLLY BABU,MADATHUMKUNNEL HOUSE, VELLAYAMKUDI,IDUKKI DISTRICT. BY ADVS. SRI.C.M.TOMY, SRI.K.J.JOSEMON, SRI.MATHEW SKARIA. RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE: ----------------------------------------------------------------------------------------- 1. SREE GOKULAM CHIT AND FINANCE CO(P)LTD, 356,ARCOT ROAD,KODAMBAKKOM,CHENNAI, REP.A.A.SANTHOSH,S/O.VIJABHANU,ASSISTANT MANAGER, THODUPUZHA-685 584. 2. STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. R1 BY ADVS. SRI.RAJ MOHAN R.PILLAI, SMT.D.MINI RAJAN. R2 BY PUBLIC PROSECUTOR SRI.VENUGOPAL M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2381 of 2010 ------------------------------- Dated this the 13th day of August, 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/company is that the husband of the revision petitioner joined a chitty with the Kattappana Branch of the company, for sala value of Rs.2 lakhs and the revision petitioner was one of the guarantor of the said chitty transaction and the chitty was prized for an amount of Rs.1,50,000/- and the prized amount was paid to the husband of the revision petitioner and there was default in paying the chitty installment and thus towards the amount due to the complainant, the accused issued Ext.P6 cheque dated 25.10.2007 for a sum of Rs.1,11,800/-, which when presented for encashment dishonoured, as there was no sufficient fund in the account Crl. R.P.No.2381 of 2010 2 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 approached the Chief Judl. Magistrate Court- Muttom, Thodupuzha, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.38/08. During the trial of the case, Pws.1 and 2 were examined from the side of the complainant and Exts.P1 to P10 were marked. No evidence 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 Crl. R.P.No.2381 of 2010 3 sentenced the revision petitioner to undergo rigorous imprisonment for 3 months and to pay a fine of Rs.1,12,000/- and in default to undergo rigorous imprisonment for a period of 3 months. It is also directed that if the fine amount is realised, the same shall be given to the complainant as compensation u/s.357 (1)(b) of Cr.P.C. 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 9.11.2009 in Crl.A.115/09, the Court of the 3rd Addl. District & Sessions Judge (Ad hoc-1), Thodupuzha, allowed the appeal only in part. Thus while confirming the conviction of the revision petitioner u/s.138 of Negotiable Instruments Act, modified and reduced the sentence to 1 day simple imprisonment ie., till the rising of the court and the order to pay fine is set aside and directed her to pay a sum of Rs.1,12,000/- as compensation to the complainant u/s.357(3) of Cr.P.C. and the default sentence was fixed as 3 months simple imprisonment. It is the above conviction and sentence challenged in this revision petition. Crl. R.P.No.2381 of 2010 4 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 order of conviction recorded by the courts below, the counsel for the revision petitioner submitted that, some breathing time may be granted to deposit 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 Crl. R.P.No.2381 of 2010 5 slight enhancement in 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 25.10.2007, for an amount of Rs.1,50,000/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.1,50,000/-, which belonged to the complainant is with the revision petitioner for the last 3 years. 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 sentence of imprisonment as modified and fixed by the lower appellate court is confirmed and the revision petitioner is directed to pay a compensation of Rs.1,15,000/- to the complainant u/s.357(3) of Cr.P.C., within 3 months from today and in case of default in paying the compensation amount, Crl. R.P.No.2381 of 2010 6 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 12.11.2010, to receive the sentence of imprisonment and to pay the compensation amount as fixed by this court. The revision petitioner is free to pay the amount either directly to the complainant or by remitting the same in the trial court, which ever is subject to the satisfaction of the trial court. In case any failure on the part of the revision petitioner in appearing before the court below as directed above and in making the payment of 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. Criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/