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.
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Crl. R.P.No.1549 of 2010
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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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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
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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
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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,
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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/