IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1588 of 2010()
1. SHEEBA .S, W/O.DINESH
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED BY
... Respondent
2. G.RAMACHANDRAN NAIR, RESIDING AT
For Petitioner :SRI.C.RAJENDRAN
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :21/05/2010
O R D E R
V.K.MOHANAN, J.
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Crl.R.P. No. 1588 of 2010
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Dated 21st Day of May, 2010
ORDER
The challenge in this Crl.R.P is against the judgment
dated 20.2.2010 in Crl.Appeal No.554/ 2007 of the Court of
2nd Addl. Sessions Judge, Kollam and the judgment dated
18.8.2007 in C.C.No.626/2004 of the Judicial First Class
Magistrate Court-II, Kollam. By the above judgments, the
courts below convicted and sentenced the revision
petitioner-accused under section 138 of the Negotiable
Instruments Act.
2. The allegation against the revision petitioner, who is
a lady, is that she had borrowed an amount of Rs.75,000/-
on 9.11.2003 and in order to discharge the said liability, she
issued a cheque dated 6.1.2004 for the same amount.
According to the complainant, when the above cheque
presented for encashment, it was dishonoured on the
ground of insufficient funds in the account maintained by
the accused. As the cheque in question was dishonured,
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the complainant approached the trial court by filing a
complaint, after complying with the statutory formalities,
which was received on file and cognizance was taken and
instituted C.C.No.626/2004. During the trial of the case, PW1
was examined from the side of the complainant and produced
Exts.P1 to P6 documents. Though no document was
produced from the side of the defence, one witness was
examined as DW1. The trial court as well as the lower
appellate court found that the complainant has established the
offence against the accused punishable under section 138 of
the N.I.Act. Accordingly, the trial court convicted the
accused/revision petitioner under section 138 of the
Negotiable Instruments Act and she is sentenced to undergo
simple imprisonment for 40 days and to pay an amount of
Rs.85,000/- as compensation to the complainant under section
357(3) Cr.P.C. It was also ordered that if the compensation
amount is not paid, the accused is to undergo default sentence
of simple imprisonment for a further period of 40 days.
Aggrieved by the above conviction and sentence, the revision
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petitioner had preferred Crl.Appeal No.554/2007 and by
judgment dated 20.2.2010, the lower appellate court
dismissed the appeal confirming the conviction of the lower
appellate court but subject to certain modification with
respect to the sentence. Accordingly, the sentence is
modified and the appellant is sentenced to pay the cheque
amount of Rs.75,000/- as fine and in case of default in
making the payment, it is further directed to undergo simple
imprisonment for 5 days. The sentence of simple
imprisonment for 40 days awarded by the trial court is
reduced to imprisonment till the rising of the court. It is the
above conviction and sentence challenged in this Crl.R.P.
3. I have heard the learned counsel for the revision
petitioner and also perused the judgment of the trial court as
well as the lower appellate court.
4. From the judgments of the courts below, it appears
that the complainant has established his case beyond
reasonable doubt by producing the cheque in question
executed and issued by the accused from his possession.
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The execution and issuance of the cheque is admitted by the
accused. The only defence taken by the accused is to the
effect that there was no transaction between the accused
and the complainant and that the amount was borrowed by
the husband of the accused from the complainant and not by
her and it is also her contention that the actual amount
borrowed by the husband of the revision petitioner-accused
is only Rs.20,000/-. Though such a contention was taken, no
evidence is adduced from the side of the defence to
substantiate the same. The Apex Court has held time and
again that mere denial of execution and issuance of the
cheque is not sufficient to discharge the burden of the
accused in a prosecution for the offence under section 138
of the N.I.Act especially when the complainant has
established his case, who is entitled to get the presumption
under section 139 of the N.I.Act. In the present case, as
indicated above, the cheque in question was signed, executed
and issued by the revision petitioner, but her specific
allegation is that there were certain loan transaction between
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her husband and the complainant and the cheque was issued
in connection with that loan transaction. When the revision
petitioner-accused admits the signature, execution and
issuance of the cheque, it is heavily upon the revision
petitioner to substantiate the plea that there was no
transaction between herself and the complainant and the
transaction was actually between the complainant and the
husband of the revision petitioner. In this connection, no
evidence was adduced. From the attendant circumstances
and the admitted facts, it appears that the parties are not
strangers. Under the above factual background and when
the revision petitioner-accused failed to substantiate her
defence, by producing any materials, I find no illegality or
wrong with the judgments of the trial court as well as the lower
appellate court so as to interfere with the concurrent finding on
facts. Therefore, there is no merit in the Crl.R.P and the
conviction imposed against the revision petitioner is only to
be confirmed and I do so.
6. The learned counsel appearing for the revision
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petitioner submitted that considering the contention raised
by the revision petitioner-accused, some modification may be
made with respect to the sentence, and a breathing time may
be granted. I have carefully considered the above
submission of the learned counsel for the revision petitioner.
The revision petitioner-accused is a lady, who is working as
a teacher in a Government School. It is also relevant to note
that the alleged transaction was taken place on 9.11.2003,
more than 7 years back. The Apex Court in its recent
decision in Damodar S. Prabhu v. Sayed Babalal H
(J.T.2010(4) SC 457), has held that in a case of dishonour
of cheques compensatory aspect of the remedy should be
given priority over the punitive aspect. On a consideration of
the above decision and application of the same in the
present case, I am of the view that while confirming the
conviction of the revision petitioner under section 138 of the
N.I.Act, the sentence of imprisonment awarded by the lower
appellate court can be maintained. But the sentence of fine
amount fixed by the trial court can be enhanced to the tune
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of Rs.85,000/- and the default sentence can be enhanced to
one month simple imprisonment, and on realization of the fine
amount, the same shall be directed to be paid to the
complainant under section 357(3) Cr.P.C.
In the result, this Crl.R.P is disposed of confirming the
conviction of the revision petitioner under section 138 of the
N.I.Act as recorded by the trial court as well as the lower
appellate court. Accordingly, the revision petitioner/accused
is sentenced to undergo simple imprisonment till the rising of
the court and she is also sentenced to pay a fine of
Rs.85,000/- and if the said amount is realised, the same
shall be paid to the complainant under Section 357(3) Cr.P.C
and in case of default in paying the amount, she is directed to
undergo simple imprisonment for a further period of one
month. Accordingly, the revision petitioner is directed to
appear before the trial court on 30.8.2010 to receive the
sentence of imprisonment and to make the payment of fine
as directed above. In case of default on the part of the
revision petitioner in appearing before the court below as
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directed above, the trial court is free to take coercive steps
against the revision petitioner to procure her presence and to
execute the sentence and for realization of the amount.
The Crl.R.P is disposed of accordingly.
V.K.MOHANAN,
JUDGE
kvm/-
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V.K.MOHANAN, J.
O.P.No.
JUDGMENT
Dated:..