IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 2ND FEBRUARY, 2010 / 13TH MAGHA, 1931 Crl.Rev.Pet.No. 387 of 2010 ------------------------------------ (CRA.5/2009 of SESSIONS COURT, KASARAGOD CC.989/2007 of JUDL.MAGISTRATE OF FIRST CLASS-I, HOSDURG) .................... REVN. PETITIONER(S): PETITIONER/APPELLANT/ACCUSED ------------------------------------------------------------------------------------- UBAID.T., AGED 63 YEARS, S/O. ANDUMAN, RESIDING AT KALLINGAL, VALIYAVALAPPU, PALLIKKARA VILLAGE, HOSDURG TALUK, KASARGODE DISTRICT. BY ADV. SRI.JAWAHAR JOSE RESPONDENT(S): COMPLAINANT & STATE ------------------------------------------------------------- 1. K.MAIMOONA, AGED 27 YEARS, D/O. ABDULRAHIMAN, RESIDING AT MANIKOTH, AJANUR VILLAGE, HOSDURG TALUK, KASARGODE DISTRICT. 2. THE STATE OF KERALA, REPRESENTE BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM R2 BY PUBLIC PROSECUTOR SRI.C.S.HRITHIK. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.R.P.No. 387 of 2010 --------------------------------------------- Dated this the 2nd day of February, 2010 O R D E R Having failed in two consecutive proceedings, the revision petitioner, who is the accused in a proceedings for the offence punishable under Section 138 of the Negotiable Instruments Act (for short 'the N.I.Act') approaches this Court challenging the conviction and sentence imposed against him. 2. By the impugned judgment of the trial court in C.C.No.989 of 2007, the revision petitioner is convicted under Section 138 of the N.I.Act and sentenced to undergo simple imprisonment for one year and to pay compensation of Rs.4 lakhs to the complainant under Section 357(3) of Cr.P.C., failing which he shall undergo simple imprisonment for four months. Challenging the above conviction and sentence, the revision petitioner approached the lower appellate court by preferring Crl.A.No.5 of 2009 which Crl.R.PNO.387 of 2010 :-2-: was disposed of by the court below by judgment dated 10.11.2009, confirming the conviction, but the sentence was modified and reduced to 15 days simple imprisonment. No interference is made with respect to the compensation ordered. It is the above judgment, conviction, sentence and orders are challenged in this revision petition. 3. The son of the revision petitioner/accused married the first respondent/the complainant. According to the complainant, her father gave a sum of Rs.3,50,000/- to the son of the revision petitioner as dowry and apart from that amount, a motor bike worth Rs.50,000/- was also given. Subsequently, the matrimonial relationship between the son of the revision petitioner and the complainant put an end to and through mediation, the son of the accused had agreed to return a sum of Rs.4 lakhs to the complainant and in discharge of the said liability of the son of the revision petitioner, the revision petitioner issued a cheque dated 30.6.2007 which was handed over to the complainant on Crl.R.PNO.387 of 2010 :-3-: 20.12.2006. According to the complainant, the said cheque was dishonoured when presented for encashment and therefore, a proper complaint was filed after compliance with the statutory requirement and C.C.No.989 of 2007 was instituted in the trial court. 4. During the course of trial, the complainant herself was examined as PW1 and Exts.P1 to P5 documents were marked as evidence of the complainant. No evidence was adduced from the side of the accused. It is on the basis of the evidence and materials on record, the trial court found that the accused is guilty. It is the above findings of the trial court as well as the lower appellate court and the sentence, this revision petition is filed before this Court. 5. I have heard Mr.Jawahar Jose, learned counsel appearing for the revision petitioner. 6. The learned counsel for the revision petitioner emphatically submitted that there is no transaction between the revision petitioner and the complainant. It is pointed Crl.R.PNO.387 of 2010 :-4-: out that even going by Ext.P1 agreement, the revision petitioner is in no way bound by the terms of Ext.P1 because Ext.P1 is an agreement only between the son of the revision petitioner and the complainant. According to the learned counsel, the courts below miserably failed to consider the above facts and therefore, the findings arrived on by the courts below are against the evidence. Thus, it is the submission of learned counsel that the complainant has miserably failed to establish the alleged offence against the revision petitioner. 7. I have carefully perused the judgments of the courts below and also the grounds taken in the memorandum of revision petition. 8. The facts that the son of the revision petitioner married the complainant and the subsequent divorce are not disputed. The specific case of the complainant is to the effect that as the marital relationship between the son of the accused and herself came into an end, the matter was Crl.R.PNO.387 of 2010 :-5-: amicably settled at the intervention of the mediators which finally culminated in Ext.P1 agreement dated 20.12.2006 and as per the terms contained therein, the son of the revision petitioner had agreed to pay a sum of Rs.4 lakhs to the complainant. It is also brought on record that the revision petitioner has put his signature as a witness to the said agreement. The case of the complainant is that towards the discharge of the liability of the son of the revision petitioner, he had issued Ext.P2 cheque drawn by him and he had put his signature in the cheque leaf pertained to the account maintained by the revision petitioner. On the basis of the said unimpeaching evidence on record, the trial court as well as the lower appellate court have found that the complainant had discharged her duty in establishing a case against the revision petitioner under Section 138 of the N.I.Act. In this juncture, it is relevant to note that a formal notice was sent to the revision petitioner/accused. He did not issued any reply to the said notice. There is also no Crl.R.PNO.387 of 2010 :-6-: explanation as to how the signed cheque of the revision petitioner reached at the hands of the complainant. More over, the facts and circumstances relied on by the complainant established through evidence especially by producing Ext.P1 positively proved the case of the complainant. Therefore, the complainant is entitled to get presumption under Section 139 of the N.I.Act and the revision petitioner has miserably failed to rebut the same. Therefore, I find no reason to interfere with the judgments and the findings arrived on by the courts below against the revision petitioner. Therefore, the conviction arrived on by the courts below is to be approved by this Court. 9. Learned counsel for the revision petitioner submitted that the sentence awarded by the courts below is too harsh and excessive and a lenient view may be taken considering the fact that the revision petitioner/accused is an aged man and also some time may be granted to make the payment. Crl.R.PNO.387 of 2010 :-7-: 10. Considering the facts and circumstances involved in the case, I am of the view that some modification can be made with respect to the sentence and also time can be granted for making the payment. But, it is relevant to note that the cheque in question dated 30.6.2007 was issued on the basis of Ext.P1 settlement dated 20.12.2006. So far, no amount is paid to the complainant. Therefore, three months time sought for by the learned counsel for the revision petitioner cannot be granted. According to me, it is also relevant to note that the revision petitioner is now at the age of 62 years and he had issued cheque to meet the liability of his son and not for his personal purpose. Therefore, I am of the view that the sentence can be modified and reduced till the rising of the court. Similarly, time for paying the compensation amount ordered by the court below, can be extended till 30.3.2010. In the result, this Crl.R.P. is disposed of confirming the conviction of the revision petitioner for the Crl.R.PNO.387 of 2010 :-8-: offence under Section 138 of the N.I.Act and he is sentenced to undergo simple imprisonment till the rising of the court and to pay compensation of Rs.4 lakhs to the complainant under Section 357(3) of the Cr.P.C. In case of his default to pay the amount, imprisonment fixed by the court below is enhanced to six months instead of four months. The revision petitioner is directed to appear before the court below on 30.3.2010 to receive the sentence and to make a deposit of Rs.4 lakhs in the trial court to be paid as compensation to the complainant under Section 357(3) of the Cr.P.C. In case of default from the side of the complainant in making the deposit, he is directed to undergo simple imprisonment for a period of six months. It is also made clear that if there is any default on the part of the revision petitioner in appearing before the court below on 30.3.2010 and making the payment of compensation, the trial court is free to procure the presence of the revision Crl.R.PNO.387 of 2010 :-9-: petitioner and take steps to execute the sentence and for realising the compensation amount. V.K.Mohanan, Judge MBS/ Crl.R.PNO.387 of 2010 :-10-: V.K.MOHANAN, J. -------------------------------------------- Crl.R.P.NO. OF 200 ------------------------------------ -------- O R D E R DATED: -10-2009 Crl.R.PNO.387 of 2010 :-11-: