IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 9TH APRIL 2008 / 20TH CHAITHRA 1930 Crl.Rev.Pet.No. 943 of 2002 CC.377/1994 of JUDL. MAGISTRATE OF FIRST CLASS, CHANGANACHERRY CRA.39/1999 of ADDL.SESSIONS COURT, KOTTAYAM .................... REVN. PETITIONER: APPELLANT/ACCUSED LEELAMA JACOB, W/O. JACOB, BINU BHAVAN, KOTTAVATTOM, VETTIKAVALA, PUNALOOR, KOLLAM, BY ADV. SMT.AYSHA YOUSEFF SMT.MOLLY JACOB SRI.N.ASHOK KUMAR RESPONDENTS: RESPONDENT/COMPLAINANT 1. MUHAMMED SHERIFF, OTTAPLAKKAL HOUSE, PERUNNA EAST POSTAL LTD., CHANGANACHERRY, (FROM ILLITHONDIL KALAYIL HOUSE), THALAYOLAPARAMBU. 2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.943 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of April 2008 ORDER Petitioner was tried for the offence punishable under Section 138 of the Negotiable Instruments Act at the instance of respondent No.1 herein. The trial court found the petitioner guilty and she was accordingly convicted and sentenced to undergo simple imprisonment for eight months and also to pay a fine of Rs.15,000 and in default to suffer simple imprisonment for a further period of two months. It was further directed that the fine amount, if realised, shall be paid to the complainant as compensation under Section 357(1) of the Code of Criminal Procedure. In appeal, the learned Sessions Judge reduced the substantive sentence of imprisonment to three months while converting the fine into compensation. Hence this revision petition. 2. The case of the complainant before the trial court was that the accused had borrowed a sum of Rs.25,000/- from him and issued Ext.P1 cheque in discharge of the said debt. But Crl.R.P.No.943 OF 2002 :: 2 :: when the cheque was presented for encashment, it was dishonoured due to insufficiency of funds in the account of the accused. The statutory demand notice issued by the complainant did not evoke any response. 3. PWs 1 to 3 were examined on the side of the complainant and Exts.P1 to P5 were marked on his side. Ext.D1 was marked on the side of the accused. 4. The defence set up by the accused was that she had had no acquaintance with the complainant. She had not borrowed any money from the complainant as alleged. She further contended that she had not drawn the alleged cheque (Ext.P1). As rightly noticed by the courts below, the complainant had satisfactorily proved his case with the aid of the oral and documentary evidence adduced by him. The accused had refused to accept the demand notice. She had not adduced any evidence to substantiate the contention that she had not borrowed money from the complainant. The presumption under Section 139 was available to the complainant. The learned Sessions Judge on a re-evaluation of the oral and documentary evidence in the case Crl.R.P.No.943 OF 2002 :: 3 :: had concurred with the view taken by the trial court. It was further noticed by the learned Sessions Judge that the accused had paid a sum of Rs.13,000/- to the complainant. It is seen noted by the learned Judge that PW1 had admitted this also. It was in the above circumstances that the learned Sessions Judge had reduced the substantive sentence of imprisonment to three months while retaining the sentence to pay Rs.15,000/- as compensation. In the above facts and circumstances, I am of the view that while confirming the order of conviction, imposed the substantive sentence can be modified and reduced. Therefore, the direction to undergo simple imprisonment for three months is set aside. Petitioner shall undergo imprisonment till the rising of the court and she shall pay the amount of compensation as directed by the Sessions Court. Petitioner shall appear before the trial court on June 16, 2008 and remit the sum of Rs.15,000/- to be paid to the complainant as compensation under Section 357(3) of the Code. On her appearance, the learned Magistrate shall ensure that the petitioner undergoes imprisonment till the rising of the court on Crl.R.P.No.943 OF 2002 :: 4 :: that day. If the petitioner fails to appear and remit the amount of compensation, the default sentence imposed on her by the appellate court shall stand confirmed. The amount, if any, deposited by the petitioner as directed by this court shall be given credit. (A.K.BASHEER, JUDGE) jes Crl.R.P.No.943 OF 2002 :: 5 :: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.943 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - ORDER Dated 9th April, 2008