IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 8TH OCTOBER 2010 / 16TH ASWINA 1932 Crl.Rev.Pet.No. 2641 of 2005() ------------------------------ ( CC.NO.572/2001 OF JFCM- I, THAMARASSERY CRL.A.NO.294/2003 OF SESSIONS COURT, KOZHIKODE) REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- P.K. RASIYABI, W/O. KASIM MUSTHAFA, PUTHAMKULANGARA HOUSE, PUTHIYANGADI, KOZHIKODE. BY ADV. SRI.T.A.SHAJI RESPONDENT(S): COMPLAINANT & STATE: ----------------------------------- 1. A.P. MOHAMMED, S/O. LATE KOYAMU HAJI, AMBALAPPADY HOUSE, MALAPPURAM, PUTHUPPADY. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.K.A.SALIL NARAYANAN FOR R1 PUBLIC PROSECUTOR SRI. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.A.No.17188/2005 in Crl.R.P.No.2641 OF 2005 Dismissed 08-10-2010 Sd/-, P.Q.BARKATH ALI, JUDGE P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.2641 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of October, 2010 ORDER Revision petitioner is the accused in C.C.No.572/2001 of Judicial First Class Magistrate Court I, Thamarassery and appellant in Crl.Appeal No.294/2003 of Sessions Court, Kozhikode. He was convicted under Section 138 of Negotiable Instruments Act and was sentenced to undergo simple imprisonment for three months and to pay a fine of Rs. 5,000/-, in default to undergo simple imprisonment for thirty days by the learned Magistrate. The fine amount if realised was ordered to be given to the complainant as compensation. On appeal by the accused, the lower appellate court confirmed his conviction, but modified the sentence to imprisonment till the rising of court and to pay a compensation of Rs. 1,00,000/- to the complainant, in default, to undergo simple imprisonment for three months. The accused has now come up in revision challenging his conviction and sentence. 2. The case of the revision first respondent/complainant as testified by her as PW1 before the trial court and as detailed in the Crl.R.P.No.2641/2005 2 complaint in brief is this: During 1999, revision first respondent/complainant paid Rs. 1,00,000/- to the husband of the revision petitioner/accused to arrange a visa for his son Abdul Azeez. The husband of the accused failed to arrange the visa. The revision petitioner undertook the liability and to discharge that liability, she issued the cheque Ext.P2 dated July 20, 2001 for Rs. 1,00,000/-. The cheque when presented for collection was returned dishounoured for want of sufficiency of funds in the account of the accused in the bank. In spite of notice Ext.P4 dated August 29, 2001 sent by the complainant, the accused did not repay the amount. Therefore, the complainant filed the complaint under Section 138 of Negotiable Instruments Act before the trial court. 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. Complainant was examined as PW1 and Exts.P1 to P7 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the accused denied the entire transaction. DW1 Crl.R.P.No.2641/2005 3 was examined on the side of the accused. 4. The learned Magistrate on an appreciation of evidence found the revision petitioner guilty of the offence punishable under Section 138 of Negotiable Instruments Act , convicted him thereunder and sentenced him as aforesaid. On appeal by the accused, the lower appellate court confirmed his conviction, but modified the sentence as mentioned above. The accused has now come up in revision challenging his conviction and sentence. 5. Heard the counsel for the revision petitioner and the counsel for the revision first respondent. 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 terms of the complaint before the trial court. Nothing was brought out during his cross examination to disbelieve his evidence. Further his evidence is Crl.R.P.No.2641/2005 4 supported by Exts.P1 to P7. 8. The case of the accused as testified by her as DW1 before the trial court was that she has not issued the cheque Ext.P2, that misusing her cheque leaf, her husband might have given a blank signed cheque to the complainant. As the execution of the cheque Ext.P2 was admitted by the accused, presumption as envisaged under Section 118 and 139 of Negotiable Instruments Act is available to the complainant. No evidence was adduced by the accused to rebut the above presumption. That apart, Ext.P8 is the agreement executed between the husband of the appellant in favour of PW1, complainant, which shows that the husband of the accused received Rs. 80,000/- from PW1 to provide a visa for his son Abdul Azeez and that in case of default, he had agreed to repay the amount to PW1. 9. For all these reasons, I hold that the trial court as well as the lower appellate court is 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 and convicting him thereunder. Therefore I confirm the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act. Crl.R.P.No.2641/2005 5 Point No.2 10. As regards the sentence, the trial court imposed a sentence of simple imprisonment for three months and to pay a fine of Rs. 5,000/- which was modified by the lower appellate court as imprisonment till the rising of court and to pay a compensation of Rs. 1,00,000/- in default to undergo simple imprisonment for three months. As the accused is a lady, I feel that a sentence of fine of Rs. 1,00,000/- alone would meet the 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 is modified to the effect that she is sentenced to pay a fine of Rs.1,00,000/- in default to undergo simple imprisonment for three months. Her bail bonds are cancelled. Time granted till December 31, 2010 for payment of fine. The fine amount, if realised, shall be paid to the complainant as compensation. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.2641/2005 6