IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 21ST DECEMBER 2009 / 30TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 1592 of 2003() ------------------------------ CRA.375/2001 of SESSIONS COURT, KOTTAYAM CC.197/1998 of JUDL. MAGISTRATE OF FIRST CLASS, VAIKOM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- RAJESWARI AMMA, USHAS HOUSE, UDAYANAPURAM BHAGOM, VADAKKEMURI VILLAGE, VAIKOM, KOTTAYAM. BY ADV. SRI.V.P.REGHURAJ SRI.R.PREM SANKAR RESPONDENT(S): RSPONDENTS- STATE & COMPLAINANT ------------------------- 1. STATE OF KERALA REPRESENTED BY THE STATE PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. A.J.VARGHESE, ADIVILAYIL HOUSE, THALAYOLAPARAMBU KARA, VADAYAR. R1 BY PUBLIC PROSECUTOR SRI C.M.KAMMAPPU SRI.MATHEWS V.JACOB (PARAVUR) SRI.N.T.NANDAKUMAR (PARAVUR) SRI.BABY KURIEN FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P.1592 of 2003 ------------------------------------------------------ Dated: DECEMBER 21, 2009 ORDER The revision petitioner is the accused in C.C. No.197/1998 of Judicial First Class Magistrate Court, Vaikom, and the appellant in Crl.A.375/2001 of Sessions Court, Kottayam. She was convicted under sec.138 of the Negotiable Instruments Act and was sentenced to undergo simple imprisonment for three months and to pay a compensation of Rs.20,000/-. On appeal by the accused the lower appellate court confirmed her conviction, but modified the sentence to simple imprisonment till the rising of court and to pay a compensation of Rs.20,000/- to the complainant. 2. The case of the revision 2nd respondent/complainant as testified by him as PW.1 before the trial court and as detailed in the complaint was that he borrowed Rs.20,000/- from the complainant and to discharge that liability the accused issued the cheque Ext.P1 dated February 6, 1998 drawn on the Oriental Bank of Commerce, M.G.Road, Ernakulam which, when presented for collection, was returned dishonoured for want of sufficiency of funds in the account of the revision petitioner in the bank and that in spite of the notice Ext.P4 dated March 7, 1998, the accused did not repay the amount, which is an offence punishable under sec.138 of the Negotiable Instruments Crl.R.P.1592/03 2 Act. 3. On receipt of the complaint the learned magistrate recorded the sworn statement of the complainant/PW.1 and took cognizance of the offence. The accused on appearance before the trial court pleaded not guilty to the charge under sec.138 of the Negotiable Instruments Act. PW.1 was examined and Exts.P1 to P6 were marked on the side of the complainant. When questioned under sec.313 Cr.P.C. by the trial court, the accused denied the transaction. No defence evidence was adduced. 4. The trial court on an appreciation of evidence found the revision petitioner guilty of the offence punishable under sec.138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid. On appeal her conviction was confirmed but the sentence was modified as mentioned above. The accused has now come up in revision challenging her conviction and sentence. 5. Heard the counsel for the revision petitioner and the revision 2nd respondent/complainant. 6. The following points arise for consideration:- I. Whether the conviction of the revision petitioner under sec.138 of the Negotiable Instruments Act can be sustained? II. Whether the sentence imposed is excessive or unduly Crl.R.P.1592/03 3 harsh? Point No.I 7. The de facto complainant/PW.1 testified in terms of the complaint before the trial court. No serious discrepancies were brought out during his cross-examination to discredit his evidence. Further his evidence is supported by Exts.P1 to P6. 8. The case of the revision petitioner/accused when questioned under sec.313 Cr.P.C. by the trial court was that Ext.P1 cheque was issued only as security and that therefore she not liable to pay any amount to the complainant. is no charge against her. There is no substance in the above contention. She did not adduce any evidence to prove her case. That apart, as the accused has admitted the execution of the cheque Ext.P1, the presumption under secs.118 and 139 of the Negotiable Instruments Act is available for the complainant. The accused did not adduce any evidence to rebut the above presumption. 9. For all these reasons accepting the evidence of PW.1 I hold that the trial court as well as the lower appellate court is perfectly justified in holding that the accused has committed an offence punishable under sec.138 of the Negotiable Instruments Act. Therefore I confirm her conviction under sec.138 of the Negotiable Crl.R.P.1592/03 4 Instruments Act. Point No.II 10. As regards the sentence, the trial court imposed a sentence of simple imprisonment for three months and to pay a compensation of Rs.20,000/-. On appeal it was modified to the effect that she was sentenced to undergo imprisonment till the rising of court and to pay a compensation of Rs.20,000/-. I find no reason to reduce the same. In the result, confirming the conviction and sentence of the appellant by the lower appellate court, the revision petition is dismissed. P.Q. BARKATH ALI, JUDGE CRL.M.A.6867 of 2003 Dismissed. 21.12.2009 P.Q. BARKATH ALI, JUDGE mt/-