IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 1ST JULY 2011 / 10TH ASHADHA 1933 Crl.Rev.Pet.No. 805 of 2002() ----------------------------- CRA.91/2000 of V ADDL.SESSIONS COURT, ERNAKULAM CC.420/1997 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... REVN. PETITIONER/ APPELLANT/ACCUSED: --------------------------------------- SEETHAMMA .L., TEACHER, ANGLO INDIAN SCHOOL, MOOLANKUZHY, KOCHI, (RESIDING AT NEDUMPALLIL HOUSE NO.3/828), MARADU P.O.,ERNAKULAM. BY ADV. SRI.N.RAVIKUMARAN NAIR RESPONDENTS/ RESPONDENT/COMPLAINANT: -------------------------------------- 1. PAILY, THAICKAL HOUSE, 14/930, PANDIKKUDI, KOCHI-2. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.THOMAS CHAZHUKKARAN FOR R1 PUBLIC PROSECUTOR SRI.JAIBY PAUL THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.P.NO.4621/2002 IN CRL.R.P.NO.805 OF 2002 DISMISSED 1-7-2011 Sd/-, P.Q.BARKATH ALI, JUDGE /True Copy/ PA to Judge P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.805 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of July, 2011 ORDER Revision petitioner is the accused in C.C.No.420/1997 on the file of Judicial First Class Magistrate Court II, Kochi and appellant in Crl.Appeal No.91/2000 of V Additional Sessions Court, Ernakulam. The learned Magistrate by judgment dated January 31, 2000 convicted her under Section 138 of Negotiable Instruments Act and sentenced her to undergo simple imprisonment for seven months and to pay a fine of Rs.4,000/- in default to undergo simple imprisonment for one month. Out of the fine amount, if realised, Rs.2,500/- was ordered to be paid to the complainant which is confirmed in appeal by the learned Sessions Judge by judgment dated April 30, 2002. The accused has now come up in revision challenging her conviction and sentence. 2. The case of the first respondent/complainant as testified by him as PW1 before the trial court and as detailed in the complaint was that the accused borrowed Rs.85,000/- from him and to discharge that Crl.R.P.No.805/2002 2 liability, she issued the cheque Ext.P1 dated May 15, 1997 drawn on the Mattanchery branch of State Bank of Travancore which when presented for collection was returned dishounoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of notice Ext.P3 dated May 20,1997, the accused did not repay the amount which is an offence punishable under Section 138 of Negotiable Instruments Act. 3. On receipt of the complaint, the learned Magistrate recorded the sworn statement of the complainant PW1 and took cognizance of the offence. The accused on appearance before the trial court pleaded not guilty to a charge under Section 138 of Negotiable Instruments Act. PWs 1 and 2 were examined and Exts.P1 to P6 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the accused submitted that she issued a blank signed cheque as a security for obtaining a loan of Rs. 20,000/- for her friend from the complainant and the complainant has misused the same and created Ext.P1. DW s 1 and 2 were examined on her side. 4. The learned Magistrate on an appreciation of evidence Crl.R.P.No.805/2002 3 found the revision petitioner guilty of the offence punishable under Section 138 of Negotiable Instruments Act, convicted her thereunder and sentenced her as aforesaid which is confirmed in appeal. The accused has now come up in revision challenging his conviction and sentence. 5. Heard the counsel for the revision petitioner/accused and the counsel for the revision first respondent/complainant. 6. The following points arise for consideration : 1) Whether the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act rendered by the trial court which is confirmed in appeal can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? Point No.1 7. Complainant as PW1 testified in a convincing manner before the trial court regarding the transaction. Nothing was brought out during his cross examination to disbelieve his evidence. Further his evidence is supported by Exts.P1 to P6 and the evidence of PW2, the Bank Manager. 8. The specific case of the accused as suggested during cross Crl.R.P.No.805/2002 4 examination of PW1 and as stated by her when questioned under Section 313 Cr.P.C. and as testified by her as DW1 was that she issued a blank signed cheque as a security for obtaining a loan of Rs. 20,000/- for her friend DW2 from the complainant and the complainant has misused the same and created Ext.P1. She examined DW1 and DW2 in support of her case. But the evidence of DW1 and DW2 do not in any way help the accused to prove her case. Both the courts below have disbelieved their evidence. I find no reason to come to a different conclusion. Therefore, in my view, both the courts below are justified in rejecting the above case of the accused. Further, as the execution of the cheque Ext.P1 was admitted by the accused, presumption as envisaged under Section 118 and 139 of Negotiable Instruments Act is available to the complainant. No reliable evidence was adduced by the accused to rebut the above presumption. 9. For all these reasons, I am of the view that the trial court as well as the lower appellate court are perfectly justified in accepting the evidence of PW1 and finding that the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. Crl.R.P.No.805/2002 5 Therefore I confirm the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act. Point No.2 10. As regards the sentence, the trial court imposed a sentence of simple imprisonment for seven months and to pay a fine of Rs.4,000/- in default to undergo simple imprisonment for one month. Out of the fine amount, if realised, Rs.2,500/- was ordered to be paid to the complainant which is confirmed in appeal by the lower appellate court. 11. Learned counsel for the revision first respondent/complainant submitted that the complainant has received the entire amount due under the cheque. Further, the revision petitioner is a lady. Therefore, a lenient view is taken and I feel that a sentence of imprisonment till the rising of court and a fine of Rs.1,000/- with default sentence would meet the ends of justice. In the result, revision petition is allowed in part. The conviction of the revision petitioner under Section 138 of Negotiable Instruments Act is confirmed. The sentence imposed by the trial court which is Crl.R.P.No.805/2002 6 confirmed in appeal by the lower appellate court is modified to the effect that revision petitioner/accused is sentenced to undergo imprisonment till the rising of court and to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for one week. One month time is granted for payment of fine amount. The revision petitioner shall surrender before the trial court on or before July 20, 2011 to receive the sentence. Her bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.805/2002 7 Crl.R.P.No.805/2002 8