High Court Kerala High Court

Sainaba Puzhakkara vs A.T. Pramode on 8 June, 2010

Kerala High Court
Sainaba Puzhakkara vs A.T. Pramode on 8 June, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 1549 of 2010()


1. SAINABA PUZHAKKARA, AGED 51 YEARS,
                      ...  Petitioner

                        Vs



1. A.T. PRAMODE, AGED 29 YEARS,
                       ...       Respondent

2. STATE OF KERALA,

                For Petitioner  :SRI.T.B.SHAJIMON

                For Respondent  : No Appearance

The Hon'ble MR. Justice V.K.MOHANAN

 Dated :08/06/2010

 O R D E R
                        V.K.MOHANAN, J.
                      -------------------------------
                    Crl. R.P.No.1549 of 2010
                      -------------------------------
               Dated this the 8th day of June, 2010.

                              O R D E R

Aggrieved by the judgment of the trial court as well as the

lower appellate court, the accused in a prosecution for the

offence u/s.138 of Negotiable Instruments Act, preferred this

revision petition.

2. The case of the complainant is that the accused/

revision petitioner borrowed a sum of Rs.1,50,000/- from the

complainant and towards the discharge of the said liability, the

accused/revision petitioner issued a cheque dated 4.12.2006,

which when presented for encashment dishonoured for want of

sufficient fund in the account maintained by the accused.

According to the complainant, though a lawyer notice was sent

demanding the money, the same was not paid and hence the

revision petitioner had committed the offence u/s.138 of

Negotiable Instruments Act. With the above allegation a formal

complaint was filed, which was received on file as

C.C.No.583/07 in the Court of Judicial First Class Magistrate-I,

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2

Hosdurg. During the trial, the complainant himself was examined

as PW1 and he had produced Exts.P1 to P6. No evidence

adduced from the side of the defence. The trial court on the

basis of the available materials found that, Ext.P1 cheque was

issued by the accused towards the discharge of a legally

enforceable debt due to the complainant and accordingly after

extending the benefit of S.139 of Negotiable Instruments Act, in

favour of the complainant, the trial court found that the revision

petitioner is guilty and he is convicted and sentenced to undergo

simple imprisonment for 6 months and to pay compensation of

Rs.1,50,000/- to PW1 and the default sentence is fixed as 3

months simple imprisonment. Against the said verdict,

conviction and sentence, the revision petitioner preferred

Crl.A.No.62/09 and by judgment dated 16.3.2010 of the Court of

Session, Kasaragod, disposed the appeal confirming the

conviction, after making certain modification with respect to the

sentence. It is the above judgments of the courts below had

challenged in this revision petition.

3. I have heard the learned counsel for the revision

Crl. R.P.No.1549 of 2010
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petitioner and also perused the judgments of the courts below.

4. On hearing the arguments of the learned counsel and

on perusal of the judgments of the courts below, it appears that

the revision petitioner/accused has admitted the transaction,

execution and issuance of the cheque, though not as claimed by

the complainant. According to the revision petitioner, she had

purchased certain gold ornaments from the complainant and at

that time she issued a blank signed cheque as security and

thereafter she had paid off the entire amount but the complainant

has not returned the cheque and the same is misused for filing

the present complaint. The trial court as well as the lower

appellate court has found that, no evidence is adduced to

substantiate such plea of the accused/revision petitioner. When

the revision petitioner/accused admitted the transaction and

issuance of the cheque, even though not as claimed by the

complainant, it is for the accused/revision petitioner to convince

the court by establishing a probable case that, the cheque in

question was issued connected with the transaction claimed by

the revision petitioner. But in the present case, the revision

Crl. R.P.No.1549 of 2010
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petitioner has miserably failed to establish her case and thereby

failed to rebut the presumption available in favour of the

complainant. The above findings on facts are recorded by the

trial court as well as the lower appellate court. Such a

concurrent finding on facts are not liable to be interfered with,

while exercising the revisional jurisdiction of this court, unless

there is any illegalities or irregularities. Therefore there is no

merit in the revision petition.

5. The learned counsel for the revision petitioner submitted

that a breathing time may be granted to the revision petitioner to

make the payment of compensation. According to me, the said

submission of the learned counsel for the revision petitioner can

be considered favourably but subject to the relevant facts and

circumstances involved in the case.

6. In the present case the cheque is dated 4.12.2006 for

an amount of Rs.1,50,000/-. Going by the said facts, the only

conclusion that can be drawn is that, an amount of Rs.1,50,000/-

belong to the complainant, is in the hands of the revision

petitioner for the last 3 = years. It is also relevant to note that,

Crl. R.P.No.1549 of 2010
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though the trial court awarded imprisonment of 6 months, the

lower appellate court reduced the same into imprisonment till the

raising of the court. But both the courts ordered a sum of

Rs.1,50,000/- as compensation u/s.357(3) of Cr.P.C. and the

default sentence fixed, on failure of the revision petitioner to

make the compensation. 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 another decision in Ahammedkutty

Vs. Abdullakoya {2008(1) KLT 851(SC)}, the apex court has

held that no default sentence can be imposed in case of failure

to pay compensation fixed u/s.357(3) of Cr.P.C. In the light of

the above settled legal position and all the relevant facts referred

above, I am of the view that the sentence of imprisonment

imposed by the court below can be set aside and the amount of

compensation fixed by the courts below can be enhanced and

the same can be directed to pay as fine.

In the result, this criminal revision petition is disposed of

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confirming the conviction, recorded by the trial court as well as

the lower appellate court. The sentence of imprisonment

awarded against the revision petitioner is set aside but she is

sentenced to pay a fine of Rs.1,60,000/- and in default she is

directed to undergo simple imprisonment for 6 months and on

realisation of the fine amount, the entire amount shall be paid to

the complainant u/s.357(1)(b) of Cr.P.C. Accordingly, the revision

petitioner/accused is directed to appear before the trial court on

8.9.2010. In case of any failure on the part of the revision

petitioner in appearing before the court below as directed above

and depositing 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.

Criminal revision petition is disposed of accordingly.

V.K.MOHANAN,
Judge.

ami/