IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 3RD AUGUST 2010 / 12TH SRAVANA 1932 Crl.Rev.Pet.No. 1826 of 2010() ------------------------------ CRA.774/2008 of I ADDL. SESSIONS COURT, PALAKKAD ST.1906/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT-III, PALAKKAD .................... REVN. PETITIONER(S): APPELLANT / ACCUSED ------------------------------------------------------------------ P. OMANA, W/O. BALASUBRAMANIAN, 33/87, DEVI NAGAR, VADAKKANTHARA, PALAKKAD. BY ADV. SRI.VINOD KUMAR.C RESPONDENT(S): RESPONDENT / COMPLAINANT ---------------------------------------------------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. THANKARAJ, PROPRIETOR, PAZHANIYAPPA CHITS & FINANCE, K.P.D. BUILDING, OLAVAKKODE, PALAKKAD. BY PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: dmb V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1826 of 2010 ------------------------------- Dated this the 3rd 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 is that the accused/revision petitioner, towards the discharge of a debt due to the complainant, issued a cheque dated 4.6.2007 for a sum of Rs.42,500/-, 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 approached the Judl. First Class Magistrate Court- III, Palakkad, by filing a formal complaint, upon which Crl. R.P.No.1826 of 2010 2 cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.1906/07. During the trial of the case, PW1, the complainant herself 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 him u/s.138 of Negotiable Instruments Act. On such conviction, the trial court sentenced the revision petitioner to pay a fine of Rs.42,500/- and the default sentence is fixed as 1 month simple imprisonment. It is also ordered that on realisation of fine amount, it shall be given to the complainant. 3. Though an appeal was filed, at the instance of the revision petitioner/ accused, by judgment dated 25.2.2010 in Crl. R.P.No.1826 of 2010 3 Crl.A.774/08, the Court of Sessions, Palakkad Division, dismissed the appeal, confirming the conviction and sentence imposed against the revision petitioner. 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 order of conviction recorded by the courts below, the counsel for the revision petitioner submitted that, some breathing time may be Crl. R.P.No.1826 of 2010 4 granted to deposit the fine amount. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered favourably and 3 months time can be granted to deposit the fine amount but subject to slight enhancement regarding the fine 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 4.6.2007, for an amount of Rs.42,500/-. Thus as per the records and the findings of the courts below, which approved by this court, a sum of Rs.42,500/- 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 revision petitioner is directed to pay a fine of Rs.45,000/-, within 3 months from today and in case of default in Crl. R.P.No.1826 of 2010 5 paying the fine amount within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for 1 month and on realisation of the fine amount, the entire amount shall be paid to the complainant as compensation u/s.357(1)(b) of Cr.P.C. Accordingly, the revision petitioner is directed to appear before the trial court on 3.11.2010 to receive the sentence of imprisonment and to pay the fine 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 making the payment of fine 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/