Vrinda v. State of Kerala & P.G. Balachandra Menon

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 10TH JUNE 2010 / 20TH JYAISTHA 1932 Crl.Rev.Pet.No. 1307 of 2010() -----------------------------CRA.942/2008 of ADDL. .DISTRICT & SESSIONS JUDGE, (ADHOC-III), N.PARAVUR. ST.7032/2005 of JUDICIAL MAGISTRATE OF FIRAST CLASS - II, N. PARAVUR .................... ## REVN. PETITIONER: APPELLANT/ACCUSED -------------------------------------- VRINDA,AGED 42 YEARS,W/O.THANKACHAN, KUNNAKATTIL,VRINDAVAN HOUSE,KARIMPADAM KARA, CHENDAMANGALAM VILLAGE,PARAVUR TALUK. BY ADV. SRI.P.T.SEBASTIAN TOMY RESPONDENT(S): RESPONDENTS/COMPLAINANT -------------------------------------- 1. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. 2. P.G.BALACHANDRA MENON @ P.G.B.MENON, S/O.GOPALA MENON,PAZHANGATTU HOUSE,PALATHURUTH KARA,CHENDAMANGALAM VILLAGE,PARAVUR TALUK. R1 BY P.P. SRI VENUGOPAL M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## V.K.MOHANAN, J. ---------------------------------------Crl.R.P. No. 1307 of 2010 ---------------------------------------Dated the 10th Day of June, 2010 ## ORDER The petitioner, who is a lady, is the accused in a prosecution for the offence punishable under section 138 of the Negotiable Instruments Act. 2. The case of the complainant/2[nd] respondent is that the revision petitioner/accused borrowed a sum of Rs.80,000/- from the complainant and when demanded back the money, the revision petitioner issued a cheque for the said amount and when presented the same for encashment, it was dishonoured. According to the complainant, though a formal demand was made for the repayment of the amount, that was not considered and hence, Section 138 of the N.I.Act is attracted. With the above allegation, the complainant approached the Judicial First Class Magistrate Court, North Parur and accordingly, cognizance was taken and instituted S.T.No.7032/2005. During the trial of the above case, the complainant was Crl.R.P.1307/10 **-:2:-** examined as PW1 and produced Exts.P1 to P6. From the side of the defence, no evidence was adduced. On the basis of the available materials and evidence, the trial court has found that the complainant has succeeded in establishing that the revision petitioner-accused issued Ext.P1 cheque in discharge of her liability. Thus, accordingly, the revision petitioner was convicted under section 138 of the Act and sentenced her to undergo simple imprisonment for three months and also directed her to pay a fine of Rs.80,000/- and the default sentence was also fixed and compensation was also ordered under section Section 357(1) of Cr.P.C. Aggrieved by the above order of conviction and sentence, an appeal was preferred by the revision petitioner. By judgment dated 26.11.2009 in Crl.A.No.942 of 2008, the court of Additional District and Sessions Judge (Adhoc-III), North Parur, disposed of the appeal confirming the conviction recorded by the trial court, but a modification was made only with respect to the default sentence. Thus in this Revision Petition the challenge is against the above judgments of the courts below Crl.R.P.1307/10 **-:3:-** and the conviction and sentence imposed against the revision petitioner. 3. I have heard the learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. 4. On hearing the arguments of the learned counsel for the revision petitioner and on perusal of the judgments of the courts below, it appears that the revision petitioner-accused has not disputed the execution and issuance of the cheque in question and she has also not disputed the signature contained therein. According to the revision petitioner-accused, the cheque in question was given as security at the time of availing a loan of Rs.20,000/- by her husband from the complainant. Admittedly, no evidence is adduced by the defence to substantiate her plea. When the accused in a prosecution for the offence under section 138 admits the execution and issuance of the cheque in favour of the complainant, though not connected with the transaction claimed by the complainant, it is for the accused to establish that the Crl.R.P.1307/10 **-:4:-** cheque in question was executed and issued connected with the transaction which he or she claimed. In the present case, according to the accused, the cheque in question was issued when her husband received a sum of Rs.20,000/- from the complainant. But no evidence was adduced to prove or substantiate above claim. Therefore, I find no reason to interfere with the concurrent finding arrived at by the trial court as well as the lower appellate court on the basis of the evidence and materials available on record. Therefore, there is no merit in this Revision Petition. 5. The learned counsel for the revision petitioner submitted that a breathing time may be granted to the revision petitioner to deposit the fine amount and also submitted that the sentence of imprisonment imposed against the revision petitioner may be set aside. The learned counsel submitted that the husband of the revision petitioner is no more and she is having some mental problem and she is undergoing treatment for the same. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission of Crl.R.P.1307/10 ## **-:5:-** the learned counsel can be considered in favour of the revision petitioner, but subject to other relevant facts and circumstances. 6. As per the records, the cheque is dated 5.8.2005 and thus it has to be presumed that a sum of Rs.80,000/-, which belongs to the complainant, is with the revision petitioner for the last 5 years. It is further relevant to note that the petitioner who is a lady now stands sentenced to undergo imprisonment for a period of 3 months and also directed her to pay the cheque amount. 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 , I am of the view that the sentence of imprisonment awarded against the revision petitioner can be set aside and , but at the same time , the fine amount and also the default sentence fixed by the courts below can be enhanced. In the result, this Crl.R.P is disposed of confirming the Crl.R.P.1307/10 ## **-:6:-** 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. The sentence of imprisonment awarded against the revision petitioner is set aside but she is sentenced to pay a fine of Rs.85,000/-, and in default, she is directed to undergo simple imprisonment for six months. 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 **13[th] September, 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 to take coercive steps against the revision petitioner to secure her presence and to execute the sentence and for realisation of the amount. V.K.MOHANAN, JUDGE kvm/- ## Crl.R.P.1307/10 **-:7:-**