IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 24TH JUNE 2010 / 3RD ASHADHA 1932 Crl.Rev.Pet.No. 1746 of 2010() ------------------------------ CRA.851/2005 of ADDL. SESSIONS COURT (FAST TRACK-I), TRIVANDRUM CC.628/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KATTAKADA .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED :- ------------------------------------------------------------------- PADMAKUMARI, STATE BANK OF TRAVANCORE, BRANCH UDIYANKULANGARA, RESIDING AT KAUSTHUBHAM, KRISHNAPURAM GRAMOM, NEYYATTINKARA. BY ADV. SRI.C.MOHANAN(THIRUPURAM) RESPONDENT(S)/COMPLAINANT & STATE :- -------------------------------------------------------------- 1. A.R. PURUSHOTHAMA CHANDRASEKHARAN, EDATHARA VEEDU, PARALLEL COLLEGE LANE, NEAR BUS STAND, KATTAKKADA. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.B.SATHIQ FOR R1 PUBLIC PROSECUTOR MR.B.JAYASURYA FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt V.K.MOHANAN, J. ----------------------------- Crl.R.P.No.1746 of 2010 --------------------------------- Dated this the 24th day of June 2010 O R D E R The accused in a prosecution for the offence under Sec.138 of the N.I.Act is the revision petitioner. 2. The allegation against the revision petitioner/accused is that she borrowed an amount of Rs.3,00,000/- from the complainant on 5.5.2000 and issued Ext.P1 cheque dated 5.6.2000 towards the discharge of the above liability and when the said cheque presented for encashment it was dishonoured as there was no sufficient fund in the account maintained by the accused and the cheque amount was not paid in spite of statutory notice sent to the accused which was received by her. Therefore, according to the complainant the accused has committed the offence punishable under Sec.138 of the N.I.Act. With Crl.R.P.No.1746 of 2010 : 2 : the said allegation the complainant approached the Judicial First Class Magistrate, Kattakkada upon which cognizance was taken under Sec.138 of the N.I.Act and instituted C.C.No.628/2000. During the trial, the complainant himself mounted to the box and adduced oral evidence as PW1. He had also produced Exts.P1 to P6 documents to substantiate his case. From the side of the defence DWs.1 and 2 were examined and produced Ext.D1 to D10 documents. After considering the materials and evidence on record the trial court found that the complainant has established his case and thereby entitled to get the presumption as envisaged by Sec.139 of the N.I.Act and also found that the accused has failed to rebut the presumption. Accordingly the trial court found that revision petitioner is guilty and convicted her under Sec.138 of the N.I.Act. Consequently she is sentenced to undergo simple imprisonment for a term of 30 days and also ordered to pay compensation of Rs.3,00,000/- to the complainant within 30 days from the date of the Crl.R.P.No.1746 of 2010 : 3 : judgment and in default in paying the amount she is directed to undergo simple imprisonment for 15 days. 3. Challenging the above order of conviction and sentence the revision petitioner/accused has preferred an appeal and by judgment dated 5.3.2010 in Crl.A.No.851/2005 the court of Addl.District & Sessions Judge, Fast Track-I, Thiruvananthapuram dismissed the appeal confirming the conviction and sentence imposed against the revision petitioner. It is the above order of conviction and sentence imposed against the revision petitioner challenged in this revision petition. 4. I have heard Sri.C.Mohan, the learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. 5. The learned counsel for the revision petitioner reiterating the stand taken by the accused in the trial court as well as the lower appellate court submitted that the complainant has failed to prove the transaction and Crl.R.P.No.1746 of 2010 : 4 : issuance of the cheque in question. The learned counsel took me through the deposition of the complainant and submitted that the complainant has no consistent case about his residence. He had also made submission on the basis of Annexure-I, II and III documents produced along with this revision petition. The trial court as well as the lower appellate court has elaborately considered the defence taken by the accused and found that the accused has miserably failed to discharge the burden of rebutting the presumption which is available in favour of the complainant. The Apex Court has held in several decisions that to rebut the presumption, the mere denial of the transaction is not sufficient but the defence has to establish probable case. In the present case, the revision petitioner herself, by cross examining the complainant, is brought on record that there was previous transaction between the complainant and the revision petitioner/accused. It is also an admitted case of the accused that she used to visit the Crl.R.P.No.1746 of 2010 : 5 : complainant connected with the pooja etc. It is also her case that she had issued cheque after putting her signature connected with the pooja and other ceremonial functions performed by the complainant. But these defence were not established properly. When the complainant in a transaction for the offence under Sec.138 of the N.I.Act after producing signed cheque of the accused claiming that the cheque in question was issued connected with the transaction claimed by him, it is for the accused to give a proper account as to how the cheque in question reached in the hands of the complainant. In the light of the facts and circumstances involved in the case it can be seen that though the accused has certain different version but the same is not materialized and not probabilized. Therefore, the admission made by the accused has gone against herself. The question regarding the proof of the case of the complainant and the case of the defence etc. are based upon facts and circumstances involved in the case and the Crl.R.P.No.1746 of 2010 : 6 : same has already been elaborately considered by the trial court as well as the lower appellate court. Thus the trial court as well as the lower appellate court has concurrently found that the complainant has established his case and the accused/revision petitioner miserably failed to rebut the presumption and accordingly found the guilt of the revision petitioner. In the light of the above facts and circumstances and especially when the revision petitioner has miserably failed to make out a case interfere with the concurrent finding of the courts below, I find no merit in the revision petition and accordingly, I have to only approve the conviction recorded by the court below. 6. The learned counsel for the revision petitioner submitted that a lenient view may be taken in the matter of sentence and a breathing time may be granted for paying the 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. Crl.R.P.No.1746 of 2010 : 7 : 7. The revision petitioner/accused is a lady who is at the age of 61 years. The sentence of imprisonment is not mandatory in view of Sec.138 of the N.I.Act. The Apex court in the decision in Damodar.S.Prabhu v. Sayed Babalal.H [J.T. 2010 (4) SC 457] has held that in the case of dishonour of cheque, compensatory aspect of the remedy shall be given priority than the punitive aspect. As per the findings of the courts below which approved by this Court a sum of Rs.3,00,000/- which belonging to the complainant is with the revision petitioner for the last 10 years. In the light of the above facts and circumstances and in view of the above decision of the Hon'ble Supreme Court, I am of the view that being a woman, the sentence of imprisonment can be set aside but the compensation amount can be enhanced slightly. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner under Sec.138 of the N.I.Act as recorded by the courts below. She Crl.R.P.No.1746 of 2010 : 8 : is sentenced to pay a fine of Rs.3,15,000/- and in default in paying the fine amount, she is directed to undergo simple imprisonment for a period of 6 months and on realization of the fine amount, a sum of Rs.3,10,000/- shall be paid to the complainant under Sec.357(1)(b) of Cr.P.C. Accordingly, the revision petitioner is directed to appear before the trial court on 24th September, 2010 to deposit the fine amount as directed above. In case any failure on the part of the revision petitioner in appearing before the court below as directed above and in making the deposit 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. V.K.MOHANAN, JUDGE. Jvt