IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930 Crl.Rev.Pet.No. 2643 of 2004(A) ------------------------------- CRA.252/2003 of II ADDL. SESSIONS COURT, PALAKKAD CC.242/2001 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PALAKKAD .................... REVN. PETITIONER/APPELLANT/ACCUSED -------------------------------------- S.PRABHALOCHANA W/O. SIVADAS, KUYLANPULLI VEEDU, KODUMBU, PALAKKAD. BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENT/1ST RESPONDENT/COMPLAINANT/2ND RESPONDENT/NON- PARTY ----------------------------------------- 1. SANTHOSHKUMAR, MANAGING PARTNER, SREE NAGALAKSHMI ENTERPRISES, KARINGARPULLY, KODUMBU, PALAKKAD. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.JACOB SEBASTIAN FOR R1 GOVT. PLEADER SRI. THOMAS AMBOOKAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16.10.08, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.R.P. No. 2643/04 ORDER ON CRL.M.APPLN. 12255/04 IN CRL.R.P. No.2643/04 DISMISSED 16.10.08 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ PA TO JUDGE. M.N.KRISHNAN, J. -------------------------- Crl.R.P. No. 2643 OF 2004 --------------------- Dated this the 16th day of October, 2008 ORDER This revision petition is preferred against the judgment of the II Addl. Sessions Judge, Palakkad in Criminal Appeal No. 252/03, which had arisen out of the conviction and sentence passed by the JFCM II Palakkad, in C.C. 242/01. The learned Magistrate found the accused guilty of the offence under section 138 of the N.I. Act and sentenced her to undergo simple imprisonment for a period of one year, which was confirmed by the appellate court. It is against that decision, the present revision is filed. 2. Learned counsel for the revision petitioner would strongly contend before me that the materials available in the case would only show that the complaint is not true and there is no evidence to establish that the accused is to be punished under section 138 of the N.I. Act. The case of the complainant is that the revision petitioner had borrowed a sum of Rs.4,00,000/- and issued Ext.P1 cheque towards the discharge of the liability. When the cheque was presented for encashment, it was returned on the ground of stop payment intimated by the revision petitioner. Thereafter, statutory notice was issued and action was initiated. 3. On the other hand, the revision petitioner would contend that she is not an oil merchant and that she had opened the account with Crl.R.P. 2643/04 2 Polpully Service Co-operative Bank on 7.5.98. The Bank gave her cheque book of 10 leaves. She had kept some of the cheque leaves signed. It is her case that on her way to the town, the bag in which she had kept the signed and unsigned cheque leaves got lost. She has informed the bank about the same and thereafter had stopped the payment. It is her case that misusing one of the cheque so lost, the complaint has been initiated. Before the trial court, PW1, DW 1 & DW2 were examined and Exts.P1 to P12 and D1 & D2 were marked. The courts below on appreciation of evidence held in favour of the complainant. 4. A perusal of the appellate judgment would reveal that the court below had dealt with each and every aspect raised by the revision petitioner before that court. Ext.D1 is the letter dated 8.5.98 purported to have been issued by the appellant to the bank requesting to stop payment. The appellate court had observed that even that letter does not help the revision petitioner to prove her defence. Ext.D2 is the certificate issued by DW2, Secretary of the Grama Panchayat. The trial court has found in para.9 of its judgment that there is some interpolation and that it cannot be totally relied upon for deciding the case. In para.22 of the judgment, the appellate court considered Ext.D1 and held that Ext.D1 does not have any hole to show that it was filed in a file. Normally, when letters are addressed to the banks, it becomes part of the record and they are punched and kept. Crl.R.P. 2643/04 3 The absence of the hole had been highlighted by the appellate court in order to disbelieve the genuineness of Ext.D1. Now it is a settled position that though offence under section 138 of the N.I. Act is visited with penal consequences, the analysis of the case to some extent can be on the preponderance of probabilities which does not mean that the complainant need only prove the prima facie case. When evidence adduced by both sides is available, it is a settled position that it can be weighed to find out which is acceptable. In other words, the intrinsic reliability or inherent probability is a matter that can be deduced from the emanating circumstances and the materials available before the court. The appellate court in para.25 had elaborately dealt with the improbability of accepting the case set up by the defendant. The signature in Ext.P1 is admitted. PW1 had entered the box. Both the courts below had accepted his evidence and the appellate court even opined that his evidence remains unshaken. So it is also to be stated that it is not the mere cheque that evidences the transaction but there are also account books maintained by the complainant that has been placed before the court for appreciation. Further, it is to be held that sitting in a revisional jurisdiction, this court cannot substitute its views when there is a clear finding which is not vitiated by any illegality or perversity. So the scope of interference in a revision is a limited one and unless there is a manifesting error, it may not be possible Crl.R.P. 2643/04 4 to undo the oral evidence in the case. The trial court have the opportunity to see the witnesses demenour and the appellate court had the opportunity to exhaustively dealt with the evidence of each and every person. I do not find mistake committed by the courts below in accepting the evidence. 5. Learned counsel for the revision petitioner argues before me that a person who takes amount from an overdraft account and advancing money to a person like the revision petitioner certainly would expect in return atleast interest. In this case it is deposed that he had given the amount not on the basis of any loan or interest. It all depends upon the individual relationship between the parties and there cannot be a uniform or universal finding that any advancement of money be accompanied by payment of interest. So that contention solely does not detain us long. So from the above discussion, I am of the view that the conviction passed by the courts below are legal and are liable to be sustained. 6. Now I deal with the question of sentence. The revision petitioner is a lady and a house wife. There is no point in sending her to the jail if she is really interested in wiping off the liability. Therefore, I modify the sentence to that for imprisonment for a day, i.e., till the rising of the court and to pay a fine of Rs.4,00,000/- which on realisation be disbursed to the complainant. In case of default of payment of fine, the revision petitioner has to undergo simple imprisonment for a period of three Crl.R.P. 2643/04 5 months. The revision petitioner is directed to appear before the Magistrate Court to undergo the sentence of imprisonment and payment of balance of fine on 14.1.09. If there is a default, the trial court shall execute the sentence. The amount already deposited by the revision petitioner shall be disbursed to the complainant and it shall form part of the fine ordered by this court. M.N.KRISHNAN, JUDGE vps Crl.R.P. 2643/04 6