IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2097 of 2010()
1. SMT.ANJALI SONY, PARAKKATTU HOUSE,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. SREE GOKULAM CHITS & FINANCE CO.LTD.,
For Petitioner :SRI.T.J.MICHAEL
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :15/07/2010
O R D E R
V.K.MOHANAN, J.
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Crl.R.P.No.2097 of 2010
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Dated this the 15th day of July 2010
O R D E R
The accused in a prosecution for an offence u/s.138 of
the 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 husband of
the accused was a subscriber in the chitty conducted by the
complainant company. The chitty prize amount was
Rs.75,000/- and the chitty was prized in favour of him and
towards the discharge of the liability due to the company
out of the chitty transaction, the accused, being the
guarantor in the said transaction, issued a cheque dated
3.1.2008 for an amount of Rs.79,710/-, which when
presented for encashment dishonoured for want of
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sufficient fund in the account maintained by the accused
and the cheque amount was not repaid in spite of a formal
demand notice and thus the revision petitioner has
committed the offence punishable u/s.138 of the Negotiable
Instruments Act. With the said allegation, the complainant
approached the Judicial Magistrate of First Class-II,
Thodupuzha by filing a formal complaint, upon which
cognizance was taken u/s.138 of the Negotiable Instruments
Act and instituted S.T.No.94/2008. During the course of the
trial, Pws.1 & 2 were examined and produced Exts.P1 to
P10 documentary evidences 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
held that, the complainant has established the case against
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the accused/revision petitioner and consequently found that
the accused is guilty and thus convicted her u/s.138 of the
Negotiable Instruments Act. On such conviction, the trial
court sentenced the revision petitioner/accused to undergo
simple imprisonment till the rising of the court and to pay
compensation of Rs.82,000/- to the complainant under
Sec.357(3) of Cr.P.C. and the default sentence is fixed as 3
months simple imprisonment.
3. Though an appeal was filed by the
accused/revision petitioner challenging the above conviction
and sentence, by judgment dated 27.2.2010 in
Crl.A.No.193/2009, the court of IInd Addl.Sessions
Judge/Special Judge for NDPS Act cases, Thodupuzha
allowed the appeal only in part and thus, while confirming
the conviction and sentence ordered by the trial court, the
appellate court modified the compensation and reduced the
amount equal to the cheque amount ie; Rs.79,10/- and the
default sentence is fixed as 3 months. It is the above orders
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are 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. The learned counsel for the revision petitioner
submitted that a breathing time may be granted to the
revision petitioner to pay the compensation amount and also
allow her to pay the compensation amount directly to the
complainant.
6. Having regard to the facts and circumstances
involved in the case, I am of the view that the said
submission can be considered favourably
In the result, this revision petition is disposed of
confirming the conviction as recorded by the courts below
against the revision petitioner under Sec.138 of the N.I.Act
and while confirming the sentence of imprisonment and
order of compensation as ordered by the lower appellate
court, the revision petitioner is granted 3 months time to
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pay the compensation and she is free to pay the
compensation amount either directly to the complainant or
by remitting the same in the trial court whichever subject to
the satisfaction of the learned Magistrate. Accordingly, the
revision petitioner is directed to appear before the trial
court on 15th October, 2010 to receive the sentence and to
pay the compensation amount. In case any failure on the
part of the revision petitioner in appearing before the trial
court as ordered above and in making the deposit 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.
V.K.MOHANAN, JUDGE.
Jvt
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