IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 Crl.Rev.Pet.No. 1891 of 2009() ------------------------------ CRA.454/2007 of ADDL.SESSIONS COURT-I, MAVELIKKARA CC.86/2005 of JUDL. MAGISTRATE OF FIRST CLASS-II, HARIPAD .................... REVN. PETITIONER/APPELLANT/ACCUSED:- ------------------------------------------------- MARIYAMMA ALEX, W/O.LATE ALEX, AGED 60, MAMPARAMBIL, MAMOOD P.O., CHANGANACHERRY TALUK, KOTTAYAM DISTRICT. BY ADV. MR. P.M.SEBASTIAN RESPONDENTS/STATE & COMPLAINANT:- ----------------------------------------------- 1. SAJI.T.THAYYIL, AGED 40, CHOOTTUPARAMBIL HOUSE, KARUVATTA VADAKKUM MURI, KARUVATTA VILLAGE, KARUVATTA P.O., ALAPPUZHA DISTRICT. 2. STATE OF KERALA, REP.PUBLIC PROSECUTOR HIGH COURT OF KERALA, COCHIN. BY ADV. MR. C.S. HRITHWIK, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/06/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------------ Crl.R.P.NO. 1891 OF 2009 ---------------------------------------- Dated this the 18th day of June, 2009 ORDER This revision is in challenge of judgment of learned Additional Sessions Judge, Mavelikkara in Criminal Appeal No.454/2007 confirming conviction and sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act. (for short, “the Act”). Respondent No.1 preferred a complaint alleging that on 20.8.2004 petitioner borrowed Rs.3,00,000/- from him and for re-payment of that amount issued Ext.P1, cheque dated 2.12.2004. That cheque was dishonoured for insufficiency of funds. Respondent No.1 issued notice to the petitioner intimating dishonour and demanding payment of the amount. Notice was served on the petitioner on 21.3.2005. Petitioner did not reply to the notice. Nor did she pay the amount. Hence, the complaint. Ext.P1 is the cheque dated 2.12.2004. Its dishonour for insufficiency of funds is proved by Exts.P3 and P4. Issue and service of notice are proved by Exts.P5 to P7. There is no challenge to the finding of Crl.R.P.No.1891/09 2 the courts below regarding cause of dishonour and issue and service of notice. 2. Respondent No.1 gave evidence as PW1 and testified to his case. He stated that petitioner borrowed the amount from him on 20.8.2004 agreeing to re-pay the same within three months and issued the cheque in re-payment of that amount. He claimed that one Sebastian, son-in-law of petitioner is his close friend and thus, he got acquainted with petitioner. He is further claimed that Ext.P1, cheque is filled up in the handwriting of petitioner herself. 3. As against that claim, petitioner would contend that her son-in-law had borrowed Rs.1,00,000/- from respondent No.1 in December 2003 and on that occasion, respondent No.1 obtained two blank cheques of herself and two blank cheques of her daughter. Son-in-law re-paid Rs.80,000/-. Making use of the blank cheques, respondent No.1 has preferred several complaints against petitioner as well as her daughter. ST.No.1778/05 is filed at Kottayam against her daughter. Son-in-law of respondent No.1 has preferred another case at Hosdurg against petitioner as S.T.No.10/2007. Petitioner examined DW1, mother of respondent No.1. Petitioner herself Crl.R.P.No.1891/09 3 gave evidence as DW2 and proved Exts.D1 and D2. Ext.D1 is the particulars concerning her deceased husband, a soldier. Ext.D2 is copy of a complaint. Courts below after consideration of evidence, found in favour of due execution of cheque. 4. So far as the transaction and execution of cheque are concerned, there is evidence of respondent No.1 as PW1. He claimed that petitioner herself filled up and signed the cheque in his presence. Learned magistrate has referred to that version of PW1 and stated that handwriting of the petitioner in the proceedings in the court below is similar to the handwriting in Ext.P1. Petitioner is not disputing that there was financial transaction with respondent No.1 and that she handed over the cheques in question to respondent No.1. The cheque contained her signature and has been drawn on the account maintained by her. It is true that petitioner has a different version but she did not examine her son-in-law to prove her case. Evidence of DW1 is not at all relevant for consideration. So far as petitioner is concerned she, of course gave evidence as DW2. PW1 denied the suggestion made to him as to the case set up by the petitioner. It is pertinent to remember that in spite of a fairly big account being claimed Crl.R.P.No.1891/09 4 from her by notice, she did not reply to that notice. If actually no amount was due and cheque was handed over in the circumstances pleaded by her, she would have replied to the notice given to her. Courts below have taken these circumstances in to consideration, evaluated the evidence and found in favour of due execution of the cheque. That finding does not suffer from any irregularity, illegality or impropriety calling for interference in revision. Hence, conviction of petitioner cannot be assailed. 5. Learned magistrate sentenced the petitioner to undergo Simple Imprisonment for two months and directed payment of compensation of Rs.3,00,000/-. A default sentence of three months was also provided. Learned counsel requested that leniency may be shown to the petitioner in the matter of sentence. He requested four months' time to the petitioner to deposit compensation in the trial court. 6. Having regard to the nature of offence and circumstances stated by learned counsel as to the difficulty of petitioner to raise the amount of compensation payable, I am inclined to grant four months' time to pay the compensation. Substantive sentence can be modified as Simple Imprisonment Crl.R.P.No.1891/09 5 till rising of the court. 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 today to deposit compensation in the trial court failing which, she shall undergo Simple Imprisonment for three months. iii) It is made clear that it will be sufficient compliance with the direction for payment of compensation if petitioner paid the compensation to respondent No.1 through her counsel in the trial court and respondent No.1 filed a statement in the trial court through his counsel within the aforesaid period, acknowledging receipt of the compensation. iv) Petitioner shall appear in the trial court on 20.9.2009. THOMAS P. JOSEPH, JUDGE Acd Crl.R.P.No.1891/09 6