IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 18TH FEBRUARY 2011 / 29TH MAGHA 1932 Crl.Rev.Pet.No. 569 of 2005(A) -------------------------------------------- CRA.442/2003 of ADDITIONAL SESSIONS COURT, N.PARAVUR CC.174/2000 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: ------------------------------------------------------------------- K.R.SREEKUMARI, W/O.SIVASANKARA PILLAI, THOPPILTHENNATE HOUSE, MEKKAD P.O,. ATHANI VIA, ERNAKULAM DISTRICT. BY ADV. SRI.JESWIN P.VARGHESE RESPONDENT(S): RESPONDENTS/ COMPLAINANT; ------------------------------------------------------------------------- 1. BENNY CHERIAN.A. S/O.CHERIAN.P. AREECKAL HOUSE, NEDUMBASSERY VILLAGE, MEKKAD P.O. ATHANI, ERNAKULAM DIST. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.A.JAYASANKAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A. NO.3007/2005 IN CRRP. NO.569/2005 DISMISSED 18.02.2011 SD/- P.Q.BARKATH ALIL, JUDGE TRUE COPY P.A. TO JUDGE tss P.Q. BARKATH ALI,J. ........................................... Crl.R.P.NO.569 OF 2005 ............................................. Dated this the 18th day of February, 2011. O R D E R Revision petitioner is the accused in C.C.No.174/2000 on the file of the Judicial First Class Magistrate Court No.1, Aluva and the appellant in Crl.A.No.442/2003 on the file of the Additional Sessions Court, North Parur. In this revision she challenges the judgment of the learned Magistrate convicting her under Section 138 of the Negotiable Instrument Act and sentencing her to undergo simple imprisonment for three months. She was also directed to pay a compensation of ` 25,000/= to the complainant, in default, to undergo simple imprisonment for two months. Her conviction and sentence were confirmed by the learned Sessions Judge by judgment dated January 6, 2005. 2. The case of the first respondent/complainant as testified him as PW1 before the trial court and as detailed in the complaint is that the accused borrowed `25,000/= from him on January 15, 2000 and to discharge that liability : 2 : Crl.R.P.NO.569 OF 2005 the accused issued Ext.P1 cheque on that day itself which when presented for collection was returned dishonoured for want of sufficiency of funds in the account of the accused and that in spite of the notice - Ext.P4 the accused did not repay the amount. Therefore the complainant filed the private complaint before the trial court under Section 138 of the N.I.Act. 3. The learned Magistrate on receipt of the complaint, recorded the sworn statement of the complainant and took cognizance of the offence. The accused on appearance before the trial court pleaded not guilty to the charge under Section 138 of the N.I.Act. The complainant was examined as PW1 and Exts.P1 to P7 were marked on his side. When questioned under Section 313 of the Cr.P.C by the Magistrate, accused denied the entire transaction. DW1 was examined on the side of the accused. The learned Magistrate on an appreciation of the evidence found that the accused has committed the offence punishable under Section 138 of the N.I.Act, convicted her thereunder and sentenced her as mentioned above. The learned Sessions Judge on : 3 : Crl.R.P.NO.569 OF 2005 appeal by the accused, confirmed her conviction and sentence. The accused has now come up in revision challenging her conviction and sentence. 4. Heard the learned counsel for the revision petitioner/accused and the counsel for revision first respondent/complainant. The following points arise for consideration: (1) whether the conviction of the revision petitioner/accused under Section 138 of the N.I.Act can be sustained. (2) Whether the sentence imposed is excessive or unduly harsh. 5. The complainant as PW1 testified in terms of the complaint before the trial court. No serious discrepancies were brought out in cross examination to discredit his evidence. Further his evidence is supported by Exts.P1 to P7. 6. The case of the accused when questioned under Section 313 Cr.P.C by the learned Magistrate and as suggested during the cross examination by PW1 was that she is a disabled person and is not able to read or write and that eldest son of the accused has handed over a : 4 : Crl.R.P.NO.569 OF 2005 signed blank cheque of the accused to the complainant and misusing that cheque, the complainant has created Ext.P1. In an attempt to prove the above case, accused examined DW1, her second son before the trial court. The trial court as well the lower appellate court had chosen to disbelieve his evidence. On going through the evidence of DW1, I find no reason to come to a difference conclusion. Further accused has not chosen to examine her eldest son as a witness. As correctly pointed out by the trial court as well as the lower appellate court, the case of the accused that she was unable to put her signature due to some disability cannot be believed as she has signed in vakalath as well as in the postal acknowledgment card. For all these reasons, I am of the view that the lower appellate court as well as the trial court is perfectly justified in accepting the evidence of PW1 and coming to the conclusion that the accused has committed the offence punishable under Section 138 of the N.I.Act and convicting her thereunder. 7. As regards the sentence, the learned Magistrate imposed a sentence of simple imprisonment for three : 5 : Crl.R.P.NO.569 OF 2005 months and also directed to pay a compensation of ` 25,000/= which is confirmed in appeal by the lower appellate court. Taking into consideration the fact that the accused is a lady and the transaction is of the year 1997, a lenient view is taken and I feel that sentence of imprisonment till the rising of the court and direction to pay a compensation of `27,000/= with default sentence would meet the ends of justice. 8. In the result, conviction of the revision petitioner under Section 138 of the N.I.Act is confirmed. Sentence is modified to the effect that she is sentenced to undergo imprisonment till the rising of the court and to pay a compensation of `27,000/= to the complainant, in default to undergo simple imprisonment for three months. 10.Counsel for the revision first respondent/complainant submits that the complainant has received `10,000/= from the revision petitioner/accused. The same shall be adjusted towards the compensation amount ordered to be paid to the complainant. `17,000/= deposited by the revision petitioner before the trial court shall be released to the revision first : 6 : Crl.R.P.NO.569 OF 2005 respondent/complainant towards the compensation amount ordered to be paid. In the result, the revision petition is allowed in part as found above. Bail bonds of the accused are cancelled. The revision petitioner shall surrender before the trial court on or before 31.3.2011 to suffer the sentence. Sd/= P.Q. BARKATH ALI,JUDGE. cl /true copy/ P.A. to Judge. : 7 : Crl.R.P.NO.569 OF 2005