T.K. Shiny vs State of Kerala and K.S. Sumathy

V.K. Mohanan, J.—The accused in a prosecution for an offence u/s 138 of the Negotiable Instruments Act is the revision petitioner, as she is aggrieved by the order of conviction and sentence imposed by the courts below.

The case of the complainant is that the accused/revision petitioner borrowed a sum of Rs. 40,000/- from the complainant and towards the discharge of the debt due to the complainant, she issued a cheque dated 8.4.2005 for a sum of Rs. 40,000/-, which when presented for encashment dishonoured, as there was no sufficient fund in the account maintained by the accused and the cheque amount was not repaid inspite of a formal demand notice and thus the revision petitioner has committed the offence punishable u/s 138 of the Negotiable Instruments Act. With the said allegation, the complainant approached the Judicial First Class Magistrate, Kunnamkulam, by filing a formal complaint, upon which cognizance was taken u/s 138 of the Negotiable Instruments Act and instituted C.C. No. 2037/2005. During the trial of the case, complainant herself examined as PW1 and Exts.P1 to P5 were marked. No evidence either oral or documentary adduced from the side of the defence. On the basis of the available materials and evidence on record, the trial court has found that the cheque in question was issued by the revision petitioner/accused for the purpose of discharging her debt due to the complainant. Thus accordingly the court found that, the complainant has established the case against the accused/revision petitioner and consequently held that the accused is guilty and thus convicted her u/s 138 of the Negotiable Instruments Act. On such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment for a period of 3 months and also sentenced her to pay a fine of Rs. 40,000/- to the complainant and in default she is directed to undergo simple imprisonment for another period of 3 months. It is also ordered that on realization of the fine amount, the entire amount shall be paid to the complainant u/s 357(1)(b) of Cr.P.C.

Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 12.7.2010 in Crl.A. No. 548/2008, the Court of Addl. District & Sessions Judge, Fast Track Court No. I, Thrissur dismissed the appeal, confirming the conviction and sentence imposed against the revision petitioner u/s 138 of the Negotiable Instruments Act. It is the above conviction and sentence are challenged in this revision petition.

I have heard the learned Counsel appearing for the revision petitioner and also perused the judgments of the courts below.

As this Court is not inclined to interfere with the order of conviction recorded by the courts below, the counsel for the revision petitioner submitted that, the sentence of imprisonment ordered by the courts below is unreasonable and exorbitant and the same may be set aside. It is also submitted that some breathing time may be granted to the revision petitioner to pay the fine amount. Having regard to the facts and circumstances involved in the case, I am of the view that the said submission can be considered favourably.

As per the records and the findings of the court below, which approved by this Court, the cheque is dated 8.4.2005 and thus, an amount of Rs. 40,000/- which belonging to the complainant is with the revision petitioner for the last 5 years. The revision petitioner/accused is a lady. 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. Therefore, considering the above facts and settled legal position, I am of the view that the sentence of imprisonment can be modified and while granting some time to the revision petitioner to pay the fine, the amount can be enhanced slightly.

In the result, this revision petition is disposed of confirming the conviction of the revision petitioner u/s 138 of the Negotiable Instruments Act as recorded by the courts below. Accordingly, the sentence of imprisonment ordered by the court below is modified and reduced to one day simple imprisonment i.e.; till the rising of the court and the revision petitioner is further sentenced to pay a sum of Rs. 52,500/- within 3 months from today and in case any default in paying the fine amount within the stipulated time, the revision petitioner is directed to undergo simple imprisonment for a period of 3 months. Accordingly, the revision petitioner is directed to appear before the trial court on 14th December, 2010, to receive the sentence of imprisonment and to pay the fine amount. In case of any failure in appearing before the court below 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 awarded against the revision petitioner. On realization of the fine amount, a sum of Rs. 50,000/- shall be paid to the complainant as compensation u/s 357(1)(b) of Cr.P.C. and the remaining amount shall be deposited into State Exchequer. Coercive steps, if any, pending against the revision petitioner shall be kept in abeyance till 15.12.2010.

Criminal revision petition is disposed of accordingly.