IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 10TH NOVEMBER 2009 / 19TH KARTHIKA 1931 Crl.Rev.Pet.No. 3483 of 2009() ------------------------------ CRA.171/2009 of ADDL. SESSIONS COURT (FAST TRACK-II), ALAPPUZHA CC.720/2006 of JUDL.MAGISTRATE OF FIRST CLASS-II, CHERTHALA .................... REVN. PETITIONER: PETITIONER/APPELLANT/SECOND ACCUSED -------------------------------------------------------- MARY VIJAYAKUMAR, CHIRAYIL, ERAMALLOOR P.O., CHERTHALA. BY ADV. SRI.J.OM PRAKASH RESPONDENTS: RESPONDENTS/COMPLAINANT AND THE STATE ---------------------------------------------------- 1. P.C.MATHEW ALIAS MATHEWS, PATTASSERIL, EZHUPUNNA SOUTH, ERAMALLOOR P.O., CHERTHALA. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.RITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ---------------------------------------- Crl.R.P.No.3483 of 2009 ---------------------------------------- Dated this the 10th day of November, 2009 ORDER The revision petitioner is the 2nd accused in C.C.No.720 of 2006 on the file of the Judicial Magistrate of the First Class-II, Cherthala. The first respondent herein prosecuted the revision petitioner and her husband (first accused) alleging offence under Section 138 of the Negotiable Instruments Act with a plea that the first respondent was a subscriber in a kury run by a partnership firm called Chirayil Chitties of which the first accused was the Managing Partner and the revision petitioner was the partner. Out of the chitty transaction Rs.46,400/- was due to the first respondent and in discharge of the said liability a cheque which was marked as Ext.P1 dated 23/5/2006 drawn on Lord Krishna Bank, Eramalloor Branch was issued and that when Ext.P1 was sent for collection it was returned bounced for insufficiency of funds and that despite the notice demanding discharge of the liability no payment was made. 2. The revision petitioner and the first accused pleaded not guilty. They were sent for trial. On the side of the first respondent, he was examined as PW.1 and Exts.P1 to P7 were Crl.R.P.No.3483 of 2009 2 marked. When questioned under Section 313 of the Code of Criminal Procedure the accused denied the incriminating evidence. Though opportunity was given to adduce defence evidence, no evidence was let in. The lower court on appraisal of the evidence arrived a finding that the first respondent had succeeded to establish the offence alleged against the revision petitioner. Whereas the first accused was found not guilty. Consequently the revision petitioner was convicted and sentenced to simple imprisonment for three months with an order to pay Rs.47,000/- as compensation to the first respondent under Section 357(3) of Code of the Criminal Procedure. The first accused was acquitted. Assailing the legality, correctness and propriety of the above conviction and sentence, Criminal Appeal No.171 of 2009 was preferred. The Additional Sessions Judge (Fast Track-II), Alappuzha by judgment dated 14/8/2009 concurred with the lower court and the appeal was dismissed. Now this revision petition. 3. Having heard the learned counsel for the revision petitioner and perusing judgments of the courts below I find that the first respondent who was examined as PW.1 had succeeded to establish that he was a subscriber to the kury run by the Crl.R.P.No.3483 of 2009 3 revision petitioner along with her husband and that out of the kury transaction Rs.46,400/- was due to the 1st respondent and in discharge of that liability Ext.P1 cheque was issued by the revision petitioner and that when Ext.P1 was sent for collection it was dishonoured as evidenced by Ext.P2 memo dated 10/7/2006. Though a notice demanding discharge of liability was caused and it was acknowledged by the revision petitioner as evidenced by Ext.P5 (a)series, the liability was not discharged. No reply was also caused. The revision petitioner took up a contention that the husband of the revision petitioner absconded. Thereupon the first respondent along with others came to the house of the revision petitioner and obtained the cheque signed under threat. However no evidence was let in support of the defence. That being the materials on record the evidence of PW.1 remains uncontroverted. There is nothing brought to impeach the veracity of the testimony of PW.1. The defence suggestion remains to be a suggestion. There is no material to conclude that Ext.P1 was obtained under threat. The courts below concurrently found against the revision petitioner. I find no reason to interfere with the concurrent findings of the courts below. The conviction is based upon cogent evidence. Crl.R.P.No.3483 of 2009 4 4. Regarding sentence, on gender consideration I find that the revision petitioner is entitled to leniency and that a sentence of imprisonment till rising of the court with order to pay Rs.47,000/- as compensation to the first respondent would meet the ends of justice. 5. In the result, the revision petition is allowed in part. While confirming the conviction, the substantive sentence is reduced to imprisonment till rising of the court. The revision petitioner shall pay Rs.47,000/- as compensation to the first respondent under Section 357(3) of the Code of Criminal Procedure. In default of payment of compensation the revision petitioner shall undergo simple imprisonment for three months. The revision petitioner is granted six months time to pay the compensation amount. Till then, the bail bond executed by the revision petitioner shall remain in force. P.S.GOPINATHAN, JUDGE skj.