IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 19TH JUNE 2009 / 29TH JYAISHTA 1931 CRL.REV.PET.NO. 1906 OF 2009() ------------------------------------------ CRA.267/2000 OF ADDL. SESSIONS COURT (ADHOC)-II, TRIVANDRUM CC.124/1998 OF JUDL. MAGISTRATE OF FIRST CLASS-IV (MOBILE), TRIVANDRUM .................... REVN. PETITIONER(S) - APPELLANT - ACCUSED: ------------------------------------------------------------ REMA B.NAIR, W/O. LATE RAJKUMAR NAIR, AGED 49 YEARS, ANUGRAHA, KODUNGANOOR P.O., KULASWEKHAAM, THIRUVNANANTHAPURAM NOW RESIDING AT NARAKATHANIL HOUSE, KANGZHA P.O., KOTTAYAM. BY ADV. SRI.AYYAPPAN SANKAR SRI.G.SURARSHAN SRI.M.ZIYAD RESPONDENT(S) - RESPONDENTS - COMPLAINANT: --------------------------------------------------------------- 1. M/S. WONDER WORK TOURS, TRAVELS & CARGO OPERATORS, SREE SAKHTHI BUILDING SASTHAMANGALAM P.O., THIRUVANANTHAPURAM REPRESENTED BY ITS MANAGING PARTNER PNC PILLAI (DIED) NOW REPRESENTED BY SMT. VIJAYAMMA PILLAI W/O. LATE PNC PILLAI, (IMPLEADED AS LEGAL HEIR OF THE DECEASED COMPLAINANT/RESPONDENT). 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI C.S. HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME FOR FOR ADMISSION ON 19/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1906 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 19th day of June, 2009 O R D E R -------------- When this revision came up for hearing today learned counsel for petitioner submitted that it is not necessary to repeat notice to respondent No.1 and that petitioner is satisfied if time is given for payment of amount covered by the cheque. I heard counsel for petitioner and Public Prosecutor who took notice for respondent No.2. 2. This revision arises from judgment of learned Additional Additional Sessions Judge (Adhoc-II), Thiruvananthapuram in Crl.Appeal No.267 of 2000 confirming conviction and sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act. According to respondent No.1 petitioner owed Rs.2,35,000/- to it and issued Ext.P1, cheque dated 31.12.1997 for repayment of the said amount. That cheque when presented for encashment was dishonoured for insufficiency of funds. On getting notice of dishonour respondent No.1 issued notice to the petitioner intimating dishonour and demanding payment of the amount. Notice was served on petitioner but she did not pay the amount. Hence the revision. CRL. R.P. No.1906 of 2009 -: 2 :- 3. Dishonour of cheque for insufficiency of funds is proved by Exts.P2, P6 and P7. Issue and service of notice are proved by the evidence of P.W.3, Post Master and Exts.P3, P5 series, P8 and P9. 4. Petitioner denied the transaction when questioned under Section 313 of the Code of Criminal Procedure. She claimed that she had taken only Rs.1,40,000/- and of that Rs.40,000/- was repaid as per Ext.D1. Respondent No.1 claimed that Ext.D1 is in respect of another transaction and did not concern the cheque (Ext.P1) involved in this case. Courts below observed that Ext.D1 does not show that it pertained to the transaction covered by Ext.P1 and hence contention of petitioner that she availed only Rs.1,40,000/- and Rs.40,000/- was repaid cannot be accepted. 5. It is seen from the judgments of courts below that evidence let in by P.W.1 was evaluated and it was found that contention of petitioner regarding amount borrowed and execution of the cheque cannot be believed. Nothing is brought out to disbelieve the version of P.W.1. Finding of the courts below as to due execution of the cheque is based on appreciation of evidence which I find no reason to interfere in revision. 6. Learned magistrate sentenced the petitioner to undergo CRL. R.P. No.1906 of 2009 -: 3 :- simple imprisonment for six months. That was confirmed by the appellate court. Counsel for petitioner requested that imprisonment may be modified. Considering the nature of the offence and the fact that petitioner is a lady I am inclined to think that simple imprisonment till rising of the court is sufficient in the ends of justice. At the same time petitioner has to pay compensation to respondent No.1 which considering the amount involved is fixed as Rs.2,35,000/-. 7. Counsel requested six months' time to enable the petitioner make the payment. Counsel states that petitioner is unable to raise the amount immediately. Considering the circumstances stated by learned counsel and taking into account the amount involved I am inclined grant four months’ time to deposit the composition. Resultantly, this revision is allowed in part to the following extent: (i) Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. (ii) Petitioner is granted four months' time from this day to deposit Rs.2,35,000/- (Rupees Two lakhs and thirty five thousand only) in the trial court as compensation for CRL. R.P. No.1906 of 2009 -: 4 :- payment to respondent No.1. In case of default, she shall undergo simple imprisonment for three months. (iii) It is made clear that it shall be sufficient compliance of condition (ii) if petitioner paid the compensation to respondent No.1 through its counsel in the trial court and respondent No.1 filed a statement in the trial court through its counsel acknowledging receipt of the compensation within the said period of four months. Petitioner shall appear in the trial court on 21.10.2009 to receive the sentence. THOMAS P.JOSEPH, JUDGE. vsv