High Court of KeralaSingle Judge2010-07-09Conviction confirmed. Substantive imprisonment ...

Bindu Somasundaran v. K.K. Rajesh Kumar and State

Case / Petition Number:CRL.R.P. No. 2047 of 2010

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: V.K. Mohanan
Judgment Date: 2010-07-09
Court Decision / Holding: This Crl.R.P. is disposed of, confirming the conviction under section 138 NI Act, but altering the substantive sentence. Imprisonment is set aside and the revision petitioner is directed to pay a fine of Rs.35,000 within three months; in default, to undergo simple imprisonment for six months. On realisation of the fine, the amount shall be paid to the complainant under section 357(1)(b) Cr.P.C. The petitioner is also directed to appear before the trial court on September 3, 2010 to deposit the fine. If there is any default, coercive steps may be taken to secure the petitioner’s presence and the realisation of the amount.
Final Disposition: Conviction confirmed. Substantive imprisonment replaced by monetary penalty of Rs. 35,000 with a default imprisonment of six months; appearance directed for payment; final disposal of Crl.R.P.

Parties to the Case

Appellants / Petitioners

BINDU SOMASUNDARAN, W/o.SOMA SUNDARAM, KARIPPAI (HOUSE), THRISSUR

Respondents

K.K.RAJESH KUMAR, S/O.KRISHNANKUTTY, KANIYATH HOUSE, AYYANTHOLE.P.O, THRISSUR
STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM

Legal Representation & Advocates

Counsels for Petitioners

• Sri.C.A.ANOOP

Counsels for Respondents

• SRI. B.JAYASURYA (Public Prosecutor)

Case Synopsis & Summary

Bindu Somasundaran, the revision petitioner, was convicted under Section 138 of the Negotiable Instruments Act for issuing a cheque for Rs. 50,000 that dishonoured for insufficient funds. The trial court sentenced three months' imprisonment and a fine of Rs. 60,000, with Rs. 55,000 payable as compensation to the complainant on realisation of the fine. An appeal by the petitioner was partially allowed by the Addl. Sessions Judge, Fast Track, Adhoc-II, Thrissur, confirming the conviction but modifying the sentence to imprisonment till the rising of the court, while keeping the fine intact. The petitioner challenged this in a Criminal Revision Petition before the Kerala High Court. The learned counsel for the petitioner submitted that time to pay should be granted, citing Damodar S. Prabhu v. Sayed Babalal H to emphasize prioritising compensation over punitive measures. The court considered increasing the fine and reducing imprisonment, noting that Rs.50,000 had been with the petitioner for eight years and that realisation of compensation should be facilitated. Relying on the Supreme Court decision, the High Court ultimately disposed of the revision by upholding the conviction but reworking the remedy: the imprisonment was replaced by a monetary penalty, with a specified default imprisonment, directing appearance to ensure payment. The decision underscores the compensatory objective in cheque-dishonour cases and the court’s discretion to balance deterrence with realisation of compensation.

Provisions of Law Cited

Section 138 of the Negotiable Instruments ActSection 357(1)(b) Cr.P.C.

Legal Doctrines & Maxims

Compensatory aspect of remedy should be given priority over punitive aspect (Damodar S. Prabhu v. Sayed Babalal H)
Damodar S. Prabhu v. Sayed Babalal H (JT 2010 (4) SC 457) - guiding principle for balancing compensation and punishment in cheque bounce cases

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner’s counsel submitted that the applicant required time to pay the amount. Relying on the apex Court’s Damodar S. Prabhu doctrine, the argument pressed for prioritising the compensatory remedy and granting more time or modifying the liability to facilitate realisation of compensation, rather than imposing imprisonment. It was urged that the court exercise its discretion to grant relief consistent with this doctrine and to provide a reasonable period to deposit the amount while maintaining the conviction.

Contentions of Respondents

The State, represented by the Public Prosecutor, argued for upholding the conviction and enforcing the remedy in a manner that ensures realisation of compensation to the complainant. It was contended that the cheque was issued for a legally enforceable debt and the procedure under the NI Act should operate to secure payment, with the punishment and compensation framework aligned to the statutory provisions and precedents. The respondent urged that the conviction and its consequences should stand while ensuring timely payment to satisfy the complainant’s claim.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Damodar S. Prabhu v. Sayed Babalal H.	JT 2010 (4) SC 457	Positive	The Supreme Court decision was cited as governing principle to prioritise the compensatory remedy over punitive measures in cheque-dishonour cases, guiding the High Court’s reduction of imprisonment and emphasis on realising compensation.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE V.K.MOHANAN** **FRIDAY, THE 9TH JULY 2010 / 18TH ASHADHA 1932** **Crl.Rev.Pet.No. 2047 of 2010()** **------------------------------** **CRA.552/2008 of ADDL. SESSIONS COURT (ADHOC-2), THRISSUR ST.1590/2002 of CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR ....................** **REVISION PETITIONER(S): APPELLANT/ACCUSED:** **---------------------------------------------------------------------------** **BINDU SOMASUNDARAN, W/O.SOMA SUNDARAM, KARIPPAI (HOUSE), THRISSUR.** **BY ADV. SRI.C.A.ANOOP** ## **RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE:** **-----------------------------------------------------------------------------------------** **1. K.K.RAJESH KUMAR, S/O.KRISHNANKUTTY, KANIYATH HOUSE, AYYANTHOLE.P.O, THRISSUR.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R2 BY PUBLIC PROSECUTOR SRI. B.JAYASURYA** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Kss** ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.R.P. No. 2047 of 2010 ----------------------------------------** Dated the 9th Day of July, 2010 ## **ORDER** The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the revision petitioner as she is aggrieved by the conviction and sentence imposed against her as per the impugned judgment. 2. The case of the complainant is that an amount of Rs.50,000/- was due to the complainant from the accused and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 4.10.2002 which when presented for encashment, dishonoured as there was no sufficient fund in the account maintained by the accused and the revision petitioner/accused miserably failed to repay the cheque amount in spite of a formal notice issued by him. With the said allegation, the complainant approached the Chief Judicial Magistrate, Thrissur, by filing a formal complaint upon which cognizance was taken under Section CRL.R.P.2047/2010 **-:2:-** 138 of the N.I.Act and instituted S.T.No.1590/2002. During the course of trial, the complainant himself mounted to the box and adduced oral evidence as PW1. He has also produced Exts.P1 to P6 as documentary evidence. No witness was examined from the side of the defence and no evidence was produced. After evaluation of the evidence and the materials on record, the trial court has found that Ext.P1 cheque was issued towards the discharge of a legally enforceable debt that due to the complainant and accordingly, the trial court held that the complainant has succeeded in establishing the allegation against the revision petitioner-accused and found that the revision petitioneraccused is guilty. Consequently, the accused is convicted under section 138 of the N.I.Act. On such conviction, the trial court sentenced the revision petitioner-accused to undergo simple imprisonment for 3 months and to pay a fine of Rs.60,000/-, in default, she is directed to undergo simple imprisonment for a further period of 3 months. It is also ordered that on realisation of the fine amount, CRL.R.P.2047/2010 **-:3:-** Rs.55,000/- shall be paid to the complainant as compensation. 3. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused had preferred an appeal, by judgment dated 5.6.2010 in Crl.A.No.552/2008/, the court of Addl. Sessions Judge,Fast Track, (Adhoc-II), Thrissur, allowed the appeal only in part and while confirming the conviction, sentence of imprisonment is modified and the revision petitioner is sentenced to undergo simple imprisonment till the rising of the court. The fine amount ordered by the trial court is also confirmed by the lower appellate court. This Crl.R.P is preferred against the above conviction and sentence. 4. The learned counsel for the revision petitioner fairly submitted that the revision petitioner requires some time to pay the amount. 5. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered favourably, but subject to slight enhancement of the fine amount since an amount of CRL.R.P.2047/2010 **-:4:-** Rs.50,000/- is with the revision petitioner for the last 8 years and considering the legal position as per the decision of the Apex Court in **Damodar S.Prabhu v. Sayed Babalal H** (J.T.2010 (4) SC 457), while granting some time to revision petitioner, the amount of fine can be enhanced to the tune of Rs.65,000/-. In the result, this Crl.R.P is disposed of confirming the conviction recorded by the courts below for the offence under section 138 of the N.I.Act . Accordingly, the sentence of imprisonment awarded against the revision petitioner is set aside but she is sentenced to pay a fine of Rs.65,000/within three months from today and, in default, she is directed to undergo imprisonment for three months. On realisation of the fine amount, a sum of Rs.60,000/- shall be paid to the complainant under section 357(1)(b) Cr.P.C. Accordingly, the revision petitioner is directed to appear before the trial court on **8[th] October, 2010** to deposit the fine amount. If there is any default on the part of the revision petitioner in appearing before the trial court as directed above, the trial court is free CRL.R.P.2047/2010 ## **-:5:-** to take coercive steps against the revision petitioner to secure his presence and for realisation of the amount. This Crl.R.P is disposed of accordingly. **V.K.MOHANAN, JUDGE** kvm/- CRL.R.P.2047/2010 ## **-:6:-** ## O.P.No. ## **JUDGMENT** ## Dated:.. 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. In the light of the above settled legal position and in view of the facts and circumstances referred to above, I am of the view that the sentence of CRL.R.P.2047/2010 **-:7:-** imprisonment imposed upon the revision petitioner can be reduced to simple imprisonment till the rising of the court and at the same time, he can be sentenced to pay a fine considering the fact that the amount covered by the cheque in question is with the revision petitioner right from 1.12.2004 and also the said amount can be ordered to be paid as compensation to the complaisant under section 357(1)(b) Cr.P.C. **In the result, this Crl.R.P is disposed of confirming the conviction recorded by the trial court as well as the lower appellate court for the offence under section 138 of the N.I.Act . The substantive sentence of imprisonment imposed against the revision petitioner is set aside and he is sentenced to pay a fine of Rs.35,000/- and in default he is directed to undergo simple imprisonment for a period of 6 months and on realisation of the fine amount, the same shall be paid to the complainant under section 357(1)(b) Cr.P.C. Accordingly, the revision petitioner is directed to appear before the trial court on 3[rd] September, 2010.** If there is any default on the part of the revision petitioner in appearing before the trial court as directed above, the trial court is free to take coercive steps against the revision petitioner to secure his presence and to execute the sentence and for realisation of the amount. **V.K.MOHANAN, JUDGE** CRL.R.P.2047/2010 ## **-:8:-** kvm/- O.P.No. **JUDGMENT** Dated:..