IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2661 of 2010()
1. K.SAJITHA, W/O.JAFER ALI, 2/104,
... Petitioner
Vs
1. SADATH, S/O.HAMZA, VELLUR KAVIL HOUSE,
... Respondent
2. STATE OF KERALA REPRESENTED BY THE
For Petitioner :SRI.P.K.MOHANAN(PALAKKAD)
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :07/09/2010
O R D E R
V.K.MOHANAN, J.
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Crl. R.P.No.2661 of 2010
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Dated this the 7th 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.75,000/- from the complainant
and towards the discharge of the debt due to the complainant,
the accused issued a cheque dated 19.9.2007 for a sum of
Rs.75,000/-, 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
approached the Judl. First Class Magistrate Court-III, Palakkad,
by filing a formal complaint, upon which cognizance was taken
Crl. R.P.No.2661 of 2010
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u/s.138 of Negotiable Instruments Act and instituted
S.T.No.96/08. During the trial of the case, the complainant
himself was mounted to the box and gave evidence as PW1 and
Exts.P1 to P4 were marked, from the side of the complainant. 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 her u/s.138 of
Negotiable Instruments Act. On such conviction, the trial court
sentenced the revision petitioner to pay a fine of Rs.75,000/- and
the default sentence was fixed as 1 month simple imprisonment.
3. Though an appeal was filed, at the instance of the
revision petitioner/accused, by judgment dated 28.5.2010 in
Crl.A.51/09, the Court of Addl. Sessions Judge (Ad hoc)-I,
Palakkad, dismissed the appeal, confirming the conviction and
Crl. R.P.No.2661 of 2010
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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
given to the revision petitioner to pay the fine amount. Having
regard to the facts and circumstances involved in the case, I am
Crl. R.P.No.2661 of 2010
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of the view that the said submission can be considered but
subject to other relevant inputs involved in the case.
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
19.9.2007, for an amount of Rs.75,000/-. Thus as per the
records and the findings of the courts below, which approved by
this court, a sum of Rs.75,000/-, which belonged to the
complainant is with the revision petitioner for the last 3 years. So,
while granting some time to pay the fine amount, the same can
be enhanced slightly.
In the result, this revision petition is disposed of confirming
the conviction and sentence imposed against the revision
petitioner u/s.138 of Negotiable Instruments Act as recorded by
the courts below. Accordingly, the fine amount fixed by the
courts below is enhanced to the tune of Rs.80,000/- and 3
months time is granted to the revision petitioner to deposit the
Crl. R.P.No.2661 of 2010
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said fine amount. The default sentence fixed by the court below
will attract only if the revision petitioner fails to deposit the fine
amount, within 3 months from today. Accordingly, the revision
petitioner is directed to deposit the above fine amount on or
before 7.12.2010. In case any failure on the part of the revision
petitioner in paying the 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. If the fine amount is realised, a sum of Rs.77,500/-
shall be paid to the complainant as compensation u/s.357(1)(b) of
Cr.P.C. and the remaining amount shall be paid to the State
Exchequer. The coercive steps if any, pending against the
revision petitioner shall be deferred till 7.12.2010.
Criminal revision petition is disposed of accordingly.
V.K.MOHANAN,
Judge.
ami/