IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 7TH NOVEMBER 2008 / 16TH KARTHIKA 1930 Crl.Rev.Pet.No. 3565 of 2008() ------------------------------ CRA.461/2004 of II ADDL. SESSIONS COURT, TRIVANDRUM CC.819/2002 of JUDL. MAGISTRATE OF FIRST CLASS COURT, VARKALA .................... REVISION PETITIONER(S): APPELLANT/ACCUSED: ---------------------------------------------------------------------------- LALI SASIDHARAN, D/O.RAGHAVAN, PANAYIL KONATHU VEEDU, PERUNGULAM, MELATTINGAL, ATTINGAL. BY ADV. SRI.P.M.HABEEB RESPONDENT(S): RESPONDENTS:COMPLAINANT AND STATE: ---------------------------------------------------------------------------------------------- 1. CHANDRA BOSE, S/O.DHARMARAJAN, VAYALIL VEEDU, VALAYANTE KUZHI, VETTOOR, VARKALA. 2. STATE OF KERALA, PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. C.M.KAMAPPU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 3565 OF 2008 =========================== Dated this the 7th day of November,2008 ORDER Petitioner is the accused in C.C.819/2002 on the file of Judicial First Class Magistrate, Varkala. First respondent lodged the complaint contending that towards repayment of the amount borrowed petitioner issued Ext.P1 cheque drawn in her account in Mananaku Branch of Indian Overseas Bank dated 9.7.2002 for Rs.1,00,000/- and when Ext.P1 cheque was presented for encashment through the account of first respondent in Thiruvananthapuram District Co-operative Bank, it was dishonoured for want of sufficient funds. Ext.P4 notice was sent demanding the amount covered by the dishonoured cheque. It was received under Ext.P5. Petitioner did not pay and thereby committed the offence under section 138 of Negotiable Instruments Act. Petitioner pleaded not guilty. First respondent was examined as PW1 and CRRP 3565/2008 2 Exts.P1 to P6 were marked. On the side of the petitioner, her husband was examined as DW1 and Ext.D1 promissory note was marked. Learned Magistrate on the evidence found the petitioner guilty. She was convicted and sentenced to simple imprisonment for two months and a compensation of Rs.1,00,000/- and in default simple imprisonment for six months. Petitioner challenged the conviction and sentence in Crl.A.461/2004. Learned Sessions Judge on reappreciation of evidence confirmed the conviction but modified the sentence to imprisonment till rising of court and a compensation of Rs.1,00,000/- and in default simple imprisonment for two months. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for petitioner was heard. 3. The argument of the learned counsel is that courts below should not have disbelieved the evidence of DW1 that Ext.P1 cheque was issued as security to the amount borrowed under Ext.D1 CRRP 3565/2008 3 promissory note from first respondent by DW1 the husband of the petitioner and was not issued as a cheque towards repayment of any loan. It was argued that learned Magistrate should not have disbelieved the evidence of DW1 on the ground that being a gulf returnee DW1 should have a bank account. There is no such law and it is not acceptable ground and therefore the conviction is not sustainable. 4. On hearing the learned counsel and going through judgments of the courts below, I do not find that the view taken by the courts below on appreciation of the evidence is not a possible or reasonable view that could be taken on the evidence. Though petitioner raised a contention that Ext.P1 cheque was not issued towards repayment of the loan obtained by the petitioner and was issued as security for the loan obtained by her husband, DW1, evidence of DW1 is that when the amount borrowed under Ext.D1, was repaid, Ext.D1 promissory note was returned. If Ext.P1 CRRP 3565/2008 4 cheque was issued as security for the loan obtained under Ext.D1 Ext.P1 also would have been returned along with Ext.D1. If in any case Ext.P1 cheque was not returned, DW1 would have insisted for return of the cheque which was given as a security for the loan when the promissory note evidencing the transaction was returned. Even if it is believed that PW1 for some reason did not return Ext.P1 cheque, which was obtained as security as alleged either petitioner or her husband would have intimated the Bank not to honour Ext.P1 cheque. The very fact that they did not take any such step cast serious doubt on the case of the petitioner that Ext.P1 cheque was issued as security for the loan obtained by her husband. Moreover, if in fact Ext.P1 cheque was issued as security and Ext.P4 notice demanding Rs.1,00,000/- was received by the revision petitioner, in the ordinary human conduct she would have sent a reply stating that Ext.P1 cheque was not issued towards repayment of any loan due from her but was issued CRRP 3565/2008 5 as security. As petitioner did not send a reply, case of the petitioner cannot be believed. Therefore appreciating the entire evidence, it can only be found that Ext.P1 cheque was issued towards repayment of the loan obtained by petitioner and not as security for the loan obtained by her husband which was repaid later. Evidence establish that Ext.P1 cheque was dishonoured for want of sufficient funds. It is also proved that first respondent has complied with all the statutory formalities provided under section 138 and 142 of Negotiable Instruments Act. Conviction of the petitioner for the offence under section 138 of Negotiable Instruments Act is perfectly legal. 5. Then the only question is with regard to the sentence. Learned Sessions Judge modified the sentence to imprisonment till rising of the court apart from a compensation which is only for the amount covered by the dishonoured cheque. In such circumstance, no interference is warranted in the sentence also. Criminal Revision Petition is CRRP 3565/2008 6 dismissed. Learned counsel for the petitioner submitted that petitioner may be granted six months time to pay the amount. Petitioner is granted three months time from today to pay the compensation. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006