Remani v. State of Kerala and Girija

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** ## **THE HONOURABLE MR. JUSTICE V.K.MOHANAN** **THURSDAY, THE 16TH SEPTEMBER 2010 / 25TH BHADRA 1932** ## **Crl.Rev.Pet.No. 2716 of 2010()** **---------------------------CRA.580/2007 OF II ADDL. SESSIONS COURT, TRIVANDRUM ST.605/2006 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT II, VARKALA** **......................................** ## **REVISION PETITIONER / APPELLANT / ACCUSED :** **---------------------------------------------------------------------** **REMANI, MAVILA VEEDU, MUNDAYIL DESOM, VARKALA VILLAGE, THIRUVANANTHAPURAM.** **BY ADVS. SRI.S.M.PREM SMT.K.P.SANTHI SRI.P.K.NIJOY SRI.NIYAS A.SALAM** ## **RESPONDENTS / RESPONDENT / COMPLAINANT :** **---------------------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. GIRIJA, D/O.VEDAVYASAN, "AGAMA", MUDIYAKODE DESOM, CHERUNNIYOOR VILLAGE, THIRUVANANTHAPURAM, PIN-695 142.** **R1 BY PUBLIC PROSECUTOR SMT. SUMANGALA P.N.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Mn** ## **V.K.MOHANAN, J.** ## **-----------------------------------------Crl.R.P. No. 2716 of 2010** **----------------------------------------** Dated the 16[th] Day of September 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 him as per the impugned judgment. 2. The case of the complainant is that the accused borrowed an amount of Rs.2,50,000/- from the complainant and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 24.8.2005 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 caused to issue by him. With the said allegation, the CRL.R.P.NO.2716/10 **-:2:-** complainant approached the Judicial First Class Magistrate-II, Varkala by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted S.T.No.605/2007. During the course of trial, the complainant herself mounted to the box and adduced oral evidence as PW1. She has also produced Exts.P1 to P5 as documentary evidence. Absolutely, no evidence, either oral or documentary is produced from the side of the defence. 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 petitioner-accused is guilty. Consequently, the accused is convicted under section 138 of the N.I.Act. On such conviction, the trial court sentenced CRL.R.P.NO.2716/10 ## **-:3:-** the revision petitioner-accused to undergo simple imprisonment for six months and also directed to pay compensation of Rs.2,50,000/- (Two lakhs and fifty thousand only) to the complainant under section357(3) Cr.P.C. The default sentence is fixed as three months simple imprisonment. Aggrieved by the above order of conviction and sentence, though the revision petitioneraccused preferred an appeal, by judgment dated 19.8.2009, in Crl.A.No.580/2007, the court of II Addl. Sessions Judge, Thiruvananthapuram, allowed the appeal only in part and while confirming the conviction of the revision petitioner, the sentence of imprisonment is reduced to till rising of the court and further directed the revision petitioner to pay a compensation of Rs.2,60,000/- to the complainant under section 357(3) Cr.P.C. and the default sentence is fixed as six months simple imprisonment. It is the above judgments of the trial court as well as the lower appellate court challenged CRL.R.P.NO.2716/10 ## **-:4:-** in this Crl.R.P. 3. Reiterating the contention taken by the defence during the trial and appellate stages, the learned counsel submitted that the complainant has not established the transaction, execution and issuance of the cheque and therefore, the courts below are absolutely wrong in convicting the revision petitioner-accused imposing sentence against her. The trial court as well as the lower appellate court has concurrently found in favour of the complainant and against the revision petitioneraccused. Though the revision petitioner is heard elaborately, nothing is brought out to take a different view to interfere with the concurrent findings of the courts below. All the contentions are based upon the facts and evidence on record which were elaborately considered by the courts below. Therefore, I find no reason to interfere with such concurrent finding of the courts below and accordingly, the conviction recorded by CRL.R.P.NO.2716/10 **-:5:-** the courts below is confirmed. 4. As this Court is not inclined to interfere with the order of conviction, the learned counsel for the revision petitioner submitted that a breathing time may be granted to the revision petitioner to pay the compensation. 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 other relevant inputs of this case. 6. The cheque in question is dated 24.8.2005, that too for an amount of Rs.2,50,000/- and thus as per the records and findings of the courts below, which approved by this court, a sum of Rs.2,50,000/- which belongs to the complainant is with the revision petitioner for the last five years. Though the trial court has imposed sentence of six months simple imprisonment, the appellate court reduced the same to CRL.R.P.NO.2716/10 ## **-:6:-** one day i.e., till the rising of the court. Now, the submission of the learned counsel is that since the revision petitioner being a Municipal Councilor, the sentence of imprisonment may be set aside. 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 the facts recorded above, especially, when the revision petitioner is a lady, I am of the view that the sentence can be confined to fine alone and some breathing time can be granted to pay the amount subject to enhancement of the fine amount. 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 ordered by the trial court CRL.R.P.NO.2716/10 ## **-:7:-** as well as the lower appellate court is set aside and instead of that, the revision petitioner is sentenced to pay a fine of Rs.3,25,000/- (Rs.Three lakhs and twenty five thousand only) which shall be paid within three months from today and in case of any default in paying the amount, the revision petitioner is directed to undergo simple imprisonment for a period of four months. Accordingly, the revision petitioner is directed to deposit the fine amount on or before **17[th] December, 2010** in the trial court and in case of any failure in paying the fine amount within the stipulated time, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence of fine and for realisation of the fine amount. On realisation of the fine amount, a sum of Rs.3,20,000/- shall be paid to the complainant as compensation under section 357(1)(b) Cr.P.C. The remaining amount shall be deposited into the State Exchequer. Coercive steps if any pending CRL.R.P.NO.2716/10 ## **-:8:-** against the revision petitioner shall be deferred till 17.12.2010. This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE. kvm/-