IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 5TH NOVEMBER 2008 / 14TH KARTHIKA 1930 Crl.Rev.Pet.No. 249 of 2006(A) ------------------------------------------ CRA. NO.4/2004 OF ADDL. SESSIONS COURT (FAST TRACK COURT-II), ALAPPUZHA, CC.22/2003 OF JUDL.MAGISTRATE OF FIRST CLASS-II, CHERTHALA. .................... PETITIONER/ APPELLANT/ ACCUSED: ------------------------------------------------------ A.K. MALLIKAMMA, W/O. SOMA NATHAN, T.T.A (D-TAX), PHONE REPAIRING CENTRE, TELEPHONE BHAVAN, ALAPPUZHA. BY ADV. SRI.C.V.MANUVILSAN, SRI.G.B.PANICKER, SRI.G.SUDHEER (THURAVOOR), SRI.T.K.SUJITH. RESPONDENTS/ RESPONDENTS/COMPLAINANT AND STATE: ---------------------------------------------------------------------------------------- 1. K.M. MAHAN, KOTTUMMEL, OPP. R.D.O. QUARTER, DIST. COURT WARD, ALAPPUZHA. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. THOMAS JOHN AMBOOKEN, R1 BY ADV. SRI.S.SANAL KUMAR, ADV. SMT.BHAVANA VELAYUDHAN. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/11/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING:' prv. M.N.KRISHNAN, J ===================== CRRP No.249 OF 2006 ===================== Dated this the 5th day of November 2008 O R D E R This revision petition is preferred against the judgment of the Addl.Sessions Court, Alappuzha in Crl.A.No.4 of 2004. The said appeal was preferred against the judgment in C.C. No.22 of 2003 of the Judl.I Class Magistrate Court, Alappuzha. The Magistrate Court found the accused guilty under Section 138 of the negotiable Instruments Act and convicted her for a period of 3 months and to pay compensation of Rs.1,90,500/- and further ordered payment of costs of Rs.2,000/-. It is against that decision an appeal was filed which was dismissed by the appellate court. It is against that decision now the present revision is filed. 2. It is the case of the complainant that on two occasions, the accused had borrowed a sum of Rs.1,90,500/- i.e. Rs.1 lakh in April, 1999, Rs.90,000/- in September, 1999 and towards the discharge of the liability she had issued Ext.P1 cheque which on presentation returned with the endorsement 'insufficiency of funds'. In spite of the statutory notice, she did not pay the amount and therefore the action was initiated under Section 138 Crl.R.P.249/2006 -:2:- of the Negotiable Instruments Act. The defence set up is that the cheque was issued only as a security. When one stood as a surety and therefore it is not supported by consideration and so initiation of proceedings under Section 138 cannot be entertained. 3. In the trial court, PW1 and Dws 1 and 2 were examined. Exts.P1 to P6 were marked. There is no dispute regarding the execution of the cheque. But the contention is that it is given as a security when the wife of the complainant stood as a surety. Both the courts below on appreciation of the evidence of PW1, Dws 1 and 2 came to the conclusion that intrinsic reliability and inherent probability in accepting the version of PW1 rather than that of Dws 1 and 2. It is also settled position of law that in a proceedings under Section 138, the materials supplied by the accused also can be taken into consideration for evaluating the correctness of the case. As rightly observed by the appellate court, if there had been issuance of the cheque only for the purpose of giving it as a security and when there is a contention that the amount for which one stood as a surety has been discharged, naturally one would expect the person to get back the cheque and not otherwise. So the approach of the court below is only in the right perspective and the decision is not vitiated by any illegality, irregularity, perversity or mis-appreciation of evidence. Being a revisional court, the Crl.R.P.249/2006 -:3:- jurisdiction of this Court is restricted and in the absence of the materials mentioned above, this court cannot come to a different conclusion. Therefore the finding of conviction under Section 138 is confirmed. 4. Now let me go into the question of sentence. I feel the trial court has been little harsh on the punishment and some sympathetic consideration is necessary for a lady who is an accused in this case. Similarly, the trial court need not have awarded cost in a case of criminal prosecution when the matter has been contested and contentions are raised which ultimately of course resulted in favour of the complainant. Therefore, I vacate the order of the court below in awarding costs to the complainant in the case. So far as sentence is concerned, interest of justice can be met by directing the revision petitioner to undergo imprisonment for one day, i.e. till the raising of the court and to pay a fine of Rs.1,90,500/- which on realisation be disbursed to the complainant in the case. In case of default, the revision petitioner has to undergo simple imprisonment for a period of 3 months. In the result, Crl.revision petition is disposed of as follows:(1)The conviction under Section 138 is sustained.(2)The order to pay cost of Rs.2,000/- is vacated. (3) The sentence is modified and the revision petitioner is directed to undergo simple imprisonment for a day, i.e. till the raising of the court and to pay a fine of Rs.1,90,500/- which on payment or Crl.R.P.249/2006 -:4:- recovery be disbursed to the complainant and in default, the petitioner shall undergo S.I. for three months. The Revision petitioner shall present before the Magistrate court to receive the sentence and for payment of fine on 5.2.2009. In case of failure to be present the trial court shall execute the sentence. M.N.KRISHNAN, JUDGE Cdp/-