IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 22ND OCTOBER 2008 / 30TH ASWINA 1930 Crl.Rev.Pet.No. 795 of 2007() ----------------------------- CRA.338/2005 of ADDL. SESSIONS COURT(ADHOC)III, PATHANAMTHITTA ST.1578/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II,PATHANAMTHITTA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED. --------------------------------------- REENA JOSE, CHEERUVELIL, KAIPATTOOR P.O., PATHANAMTHITTA. BY ADV. SRI.V.PHILIP MATHEW RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE. ----------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. P.R.NARAYANAN NAIR, PANACKAL HOUSE, AZHOOR MURI, PATHANAMTHITTA. ADV. SRI.V.SETHUNATH FOR R2 PUBLIC PROSECUTOR SRI C M KAMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/10/2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 795 OF 2007 ............................................ DATED THIS THE 22nd DAY OF OCTOBER, 2008 ORDER Petitioner is the accused and first respondent, the complainant in S.T.1578 of 2004 on the file of Judicial First Class Magistrate-II, Pathanamthitta. Case of second respondent was that petitioner borrowed Rs.1,75,000/- and towards it repayment, issued Ext.P1 cheque drawn in his account maintained in Chandanappally Branch of Federal Bank. When Ext.P1 cheque was presented for encashment, it was dishonoured for want of sufficient funds under Ext.P2. Second respondent sent Ext.P4 notice. It was received by petitioner under Ext.P6 postal acknowledgment card. Petitioner did not pay the amount. Complaint was lodged, contending that offence under Section 138 of N.I.Act was committed. Chief Judicial Magistrate, Pathanamthitta took cognizance of the offence. Petitioner was tried by Judicial First Class Magistrate, Pathanamthitta after the case was transferred to him. Petitioner pleaded not guilty. Second respondent was examined as PW1. Exts.P1 to P6 were marked. 2. Learned Magistrate, on the evidence, found petitioner CRRP 795/2007 2 guilty. She was sentenced to simple imprisonment for six months and a compensation of Rs.1,90,000/- and in default, simple imprisonment for three months. Petitioner challenged the conviction and sentence before Sessions Court, Pathanamthitta in Crl.A.338 of 2005. Learned Additional Sessions Judge, on reappreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision petition. 3. Learned counsel appearing for petitioner and second respondent were heard. The argument of learned counsel is that learned Magistrate passed the judgment before hearing petitioner on the date on which the case was posted for arguments and learned Sessions Judge, in appeal did not properly consider this aspect. It was also argued that the proof affidavit filed by second respondent does not disclose when the notice was sent and when notice was received and in such circumstances courts below were not justified in convicting the petitioner, in view of the answer given by PW1 in cross examination. It was also argued that in any case, there is no evidence to prove that petitioner borrowed the amount and the cheque was issued towards its repayment and above all the CRRP 795/2007 3 sentence awarded is excessive. Learned counsel appearing for second respondent argued that courts below properly considered the evidence and there is no reason to interfere with the conviction and sentence. 4. The proceeding paper of learned Magistrate shows that on 10.10.2005, petitioner was questioned under Section 313 of Code of Criminal Procedure and case was posted for defence evidence to 13.10.2005. On 13.10.2005, no defence evidence was adduced and the case was posted to 19.10.2005 for hearing. The proceeding paper only shows that petitioner was absent on that day and arguments were heard and petitioner was found guilty and convicted. For the reason that judgment was pronounced on the same day on which arguments were heard, it is not possible to hold that petitioner was not heard before the judgment was passed. 5. The case of second respondent as spoken to by PW1 is that the husband of petitioner is one of his friends and Rs.1,75,000/- was borrowed by petitioner for construction of her house and towards its repayment, Ext.P1 cheque was issued. The case of petitioner at the time of questioning under Section 313 of Code of Criminal Procedure was that she was an CRRP 795/2007 4 employee of a financial institution run by second respondent and she worked there for six months and for that employment, a signed blank cheque was given as security and it is Ext.P1 cheque. Pw1 denied that he was running such an institution. Apart from the suggestion no other evidence was adduced either to prove that second respondent was running a financial establishment, or that petitioner was an employee therein or that she had given a signed blank cheque as security. If the defence case is true, in the ordinary human conduct, when a notice demanding Rs.1,75,000/- based on Ext.P1 is received, she would have sent the reply narrating the true facts. In such circumstances, appreciating the entire evidence, I do not find any reason to interfere with the finding of courts below that Ext.P1 cheque was issued by petitioner towards repayment of the existing liability. Evidence establish that it was dishonoured for want of sufficient funds. Though PW1 did not give the date on which Ext.P4 notice was sent, or it was received by petitioner, both the dates are seen from Ext.P4 and P6. In fact in Ext.P6, there is a dated signature of petitioner herself. In such circumstances, failure to give the date in chief examination is not very material. Evidence establish that within the statutory CRRP 795/2007 5 period, notice was sent and complaint was also filed. Conviction of petitioner for the offence under Section 138 of N.I.Act is perfectly legal. 6. Then the question is with regard to sentence. Ext.P1 cheque is for Rs.1,75,000/-. Interest of justice will be met, if the sentence is modified to imprisonment till rising of court and a fine, for the amount covered by the dishonoured cheque with a direction to pay the same to second respondent as compensation under Section 357(1) of Code of Criminal Procedure. 7. Revision petition is allowed in part. Conviction of petitioner under Section 138 of N.I.Act is confirmed. Sentence is modified to imprisonment till rising of court and a fine of Rs.1,75,000/- and in default, simple imprisonment for one month. On realisation of the fine, it is to be paid to second respondent as compensation under Section 357(1) of Code of Criminal Procedure. Petitioner is granted two months time to pay the fine. Petitioner is directed to appear before learned Magistrate on 29.12.2008. M.SASIDHARAN NAMBIAR, JUDGE lgk/-