IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 1ST JANUARY 2009 / 11TH POUSHA 1930 Crl.Rev.Pet.No. 4207 of 2008() ------------------------------ CRA.126/2008 of SESSIONS COURT, ALAPPUZHA CC.188/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT -I, ALAPPUZHA .................... REVN. PETITIONER(S): APPELLANTS/ACCUSED --------------------------------------- MINI THYAGARAJAN, S/O.THYAGARAJAN, KIZHAKKE PANIKKATHU PARAMBU, MARARIKULAM NORTH P.O., POKLESSERI, CHERTHALA. BY ADV. SRI.BIJU ABRAHAM RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. SHOBHANA, NIKARTHIL HOUSE, KANICHUKULANGARA P.O., CHERTHALA. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, ERNAKULAM. BY PUBLIC PROSECUTOR MUHAMMED PUZHAKKARA FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 4207 OF 2008 =========================== Dated this the 1st day of January,2009 ORDER Revision petitioner is the accused and first respondent the complainant in C.C.188/2006 on the file of Judicial First Class Magistrate Court-I, Alappuzha. Petitioner was convicted and sentenced for the offence under section 138 of Negotiable Instruments Act. Revision petitioner challenged the conviction and sentence before Sessions Court, Alappuzha in Crl.A.126/2008. Learned Sessions Judge on reappreciation of evidence confirmed the conviction but modified the sentence to imprisonment till rising of court and a fine for the amount covered by the dishonoured cheque with a direction to pay the fine on realisation to first respondent as compensation under section 357(1) of the Code of Criminal Procedure. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for revision CRRP 4207/2008 2 petitioner was heard. 3. The argument of the learned counsel is that Ext.P1 cheque was issued not towards the discharge of any existing liability and instead was issued by her husband in a transaction with first respondent and therefore conviction is not sustainable. Learned counsel also argued that the courts below should have found that no notice as provided under section 138(b) of Negotiable Instruments Act was sent as Ext.P5 notice was not refused to be received by the revision petitioner and the postman was not examined. 4. On hearing the learned counsel and going through the judgments of the courts below, I find no reason to interfere with the conviction. It is the specific case of first respondent that revision petitioner borrowed Rs.45,000/- and towards its repayment issued Ext.P1 cheque which was dishonoured when presented for encashment. Learned Magistrate as well as learned Sessions Judge appreciated the evidence of PW1 in the proper perspective and found that Ext.P1 cheque was issued towards repayment of the amount borrowed earlier. CRRP 4207/2008 3 Nothing was pointed out to interfere with that factual findings. Though learned counsel argued that it was issued as security by the husband of revision petitioner no evidence was adduced in support of the defence. Even the case was not probablised by the cross examination of PW1. In such circumstance, findings of the courts below that Ext.P1 cheque was issued towards discharge of the existing liability is in accordance with the evidence and warrants no interference. 5. Though it was argued that Ext.P5 notice was not a proper notice as provided under section 138 (b) of Negotiable Instruments Act, petitioner has no case that the address shown in Ext.P5 was not the correct address of the revision petitioner. Though it was contended that the address was subsequently changed, no evidence was adduced to prove that prior to the date of return of Ext.P5 notice as unclaimed, there was a change in her address. The endorsement in Ext.P5 establish that intimation was given and inspite of the intimation, notice was not received. Therefore it was returned as unclaimed. It is a proper and valid notice as CRRP 4207/2008 4 rightly found by the courts below. In such circumstance, I find no reason to interfere with the conviction for the offence under section 138 of Negotiable Instruments Act. 6. Then the only question is regarding the sentence. Learned Sessions Judge modified the sentence to imprisonment till rising of court, in addition to a fine which was only for the amount covered by the dishonoured cheque. In such circumstance, no interference in the sentence is also warranted. Revision is dismissed. Revision petitioner is granted two months time to pay the fine as directed by the learned Sessions Judge. Revision petitioner is directed to appear before the learned Magistrate on 2.3.2009. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006