IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2328 of 2010()
1. PADMAVATHI K.V., W/O.KOTTANKUNHI,
... Petitioner
Vs
1. RAJESH, AGED 32 YEARS, S/O.KUMARAN,
... Respondent
2. STATE OF KERALA REPRESENTED BY THE
For Petitioner :SRI.S.JIJI
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :02/09/2010
O R D E R
V.K.MOHANAN, J.
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Crl. R.P.No.2328 of 2010
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Dated this the 2nd 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, towards the
discharge of a liability connected with a visa transaction, the
accused/revision petitioner issued a cheque dated 17.1.2008 for
a sum of Rs.50,000/-, 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 initially approached the Chief Judl. Magistrate
Court-Kasaragod, by filing a formal complaint, upon which
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cognizance was taken u/s.138 of Negotiable Instruments Act and
instituted C.C.No.400/08 and subsequently the case was made
over to the Court of Judicial First Class Magistrate-II (Addl.
Munsiff), Kasaragod, wherein the case is renumbered as
C.C.No.296/08. During the trial of the case, PW1, the
complainant himself was examined from the side of the
complainant and Exts.P1 to P5 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 her u/s.138 of Negotiable
Instruments Act. On such conviction, the trial court sentenced
the revision petitioner to undergo simple imprisonment for 3
months and to pay a compensation of Rs.50,000/- to the
complainant u/s.357(3) of Cr.P.C. and the default sentence is
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fixed as one month simple imprisonment.
3. Though an appeal was filed, at the instance of the
revision petitioner/accused, by judgment dated 20.2.2010 in
Crl.A.364/08, the Court of Sessions, Kasaragod, allowed the
appeal only in part, confirming the conviction against the revision
petitioner u/s.138 of Negotiable Instruments Act. The sentence of
imprisonment was reduced to one day simple imprisonment ie.,
till the rising of the court. The compensation amount and the
default sentence were confirmed by the appellate court and
directed the revision petitioner to appear before the trial court on
24.3.2010. 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
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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 conviction
recorded by the courts below, the learned counsel for the revision
petitioner submitted that, some breathing time may be granted to
pay the compensation amount and also to permit the revision
petitioner to pay the compensation amount directly to the
complainant. 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 other relevant materials and
circumstances 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
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17.1.2008, that too for an amount of Rs.50,000/-. Thus as per
the records and the findings of the courts below, which approved
by this court, a sum of Rs.50,000/- which belonged to the
complainant is in the hands of the revision petitioner for the last 2
years. Considering the above facts and legal position, I am of the
view that, the sentence of imprisonment and the compensation
amount ordered by the appellate court can be confirmed and the
revision petitioner can be granted some time to pay the
compensation amount.
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, while confirming the sentence of imprisonment as
revised and refixed by the appellate court, the revision petitioner
is directed to pay the compensation amount as fixed by the courts
below, within one month from today and in case of default in
paying the compensation amount, the revision petitioner is
directed to undergo simple imprisonment for 1 month.
Accordingly, the revision petitioner is directed to appear before
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the trial court on 4.10.2010, to receive the sentence of
imprisonment and to pay the compensation amount as directed
by this court. The revision petitioner is free to pay the
compensation amount either directly to the complainant or by
remitting the same in the trial court, which ever subject to the
satisfaction of the learned Magistrate. 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. The execution of warrant
if any, pending against the revision petitioner shall be deferred till
4.10.2010.
Criminal revision petition is disposed of accordingly.
V.K.MOHANAN,
Judge.
ami/