IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 Crl.Rev.Pet.No. 1374 of 2009 ------------------------------ CRA.559/2007 of ADDL. SESSIONS COURT (ADHOC-2), THRISSUR CC.1386/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR .................... REVN. PETITIONER/APPELLANT/ACCUSED: ==================== SINDHU @ SMITHA, W/O.M.K. BABURAJ,MENGADI VEETIL, THALIKULAM VILLAGE, DESOM, VADANAPILLY.P.O, CHAVAKKAD TALUK, THRISSUR DISTRICT. BY ADV. SRI.V.BINOY RAM RESPONDENT/RESPONDENTS/COMPLAINANT: ======================= 1. JAYANANDHAN, S/O. CHAKKANGATT CHANDRANANDAN, THALIKULAM VILLAGE, DESOM, VADANAPILLY.P.O, CHAVAKKAD TALUK, THRISSUR DISTRICT. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.BABU KARUKAPADATH FOR R1 SRI.K.A.NOUSHAD FOR R1 SRI.P.G.PRAMOD FOR R1 PUBLIC PROSECUTOR : JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.1374 of 2009 --------------------------------------- Dated this 26th day of June 2009 ORDER This revision is in challenge of judgment of learned Additional Sessions Judge (Adhoc-II), Thrissur in Crl. Appeal No. 559/2004. That appeal arose from judgment of learned Judicial First Class Magistrate Kodungallur in C.C.No.1386/2005 on a private complaint preferred by respondent No.1 alleging that petitioner committed offence punishable under Sec.138 of the Negotiable Instruments Act. According to respondent No.1, petitioner borrowed Rs.85,000/- from respondent No.1 and for the discharge of that debt issued Ext.P1, cheque dated 19/09/05. That cheque was dishonoured for insufficiency of funds as per Ext.P2, memo dated 20/09/05. Intimation regarding dishonour was given to respondent No.1 as per Ext.P3 dated 28/09/05. Thereon respondent No.1 issued notice to the petitioner intimating dishonour and demanding payment of the amount. Notice was served on the petitioner on 30/09/05. Issue and service of the notice are proved by Ext.P4 and P5. There is no challenge to the finding of courts below as to cause of dishonour and issue and service of notice Crl.R.P.No.1374/09 2 on the petitioner. 2. Respondent No.1 gave evidence as PW1 and stated that petitioner borrowed Rs.85,000/- from him and for repayment of that debt issued the cheque. Petitioner when questioned under Sec.313 of Code of Criminal Procedure claimed that she had no transaction with respondent No.1. Instead, her husband had borrowed some money from respondent No.1 and in connection with that transaction she happened to give the cheque to respondent No.1. Courts below were not inclined to accept that contention and found the petitioner guilty. That finding is under challenge in this revision. It is not disputed that cheque contained signature of the petitioner and that cheque was drawn on the account maintained by her. It is also not disputed that petitioner had handed over the cheque to respondent No.1. According to her it was in connection with the amount borrowed by her husband. Assuming that it was for discharge of the liability of her husband that she issued the cheque, it cannot be said that the cheque is not supported by consideration. There is no evidence to show that there was transaction between husband of the petitioner and respondent No.1. Crl.R.P.No.1374/09 3 Petitioner did not even reply to the notice served on her. The suggestion put on behalf of petitioner to respondent No.1 when the latter was in the box was denied by him. Courts below have considered the evidence and circumstances to conclude that petitioner issued the cheque for discharge of liability towards respondent No.1. I do not find reason to interfere with the finding entered by the courts below or the conviction of the petitioner. 3. Learned magistrate sentenced petitioner to undergo simple imprisonment for nine months and directed payment of compensation of Rs.95,000/-. In default of payment, petitioner was directed to undergo imprisonment for three months. Appellate court while confirming the direction for payment of compensation and modifying the substantive sentence as imprisonment till rising of the court, provided imprisonment for six months in case of non-payment of compensation. 4. I do not find reason to interfere with the substantive sentence as modified by the appellate court and direction for payment of compensation. But, default sentence for non-payment of Crl.R.P.No.1374/09 4 compensation can be modified as simple imprisonment for three months' as awarded by the trial court. 5. Learned counsel for petitioner requested four months' time to deposit compensation in the trial court. Learned counsel states that petitioner is unable to raise the amount immediately. 6. Having regard to the amount involved and circumstances stated by learned counsel I am inclined to allow that request. Resultantly, this revision is allowed in part to the following extend; (i) While retaining the substantive sentence as modified by the appellate court and direction for payment of compensation as confirmed by that court, sentence provided for non payment of compensation is modified as simple imprisonment for three months. (ii) Petitioner is granted four months time from today to deposit the compensation in the trial court. In case of failure she shall undergo simple imprisonment for three months'. (iii) It is made clear that it will be sufficient compliance of the Crl.R.P.No.1374/09 5 direction to deposit compensation if petitioner paid the compensation to respondent No.1 through her counsel in the trial court and respondent No.1 filed a statement in the trial court through his counsel acknowledging receipt of the amount within the aforesaid period. (iv) Petitioner shall appear in the trail court on 28/10/09 to receive the sentence. THOMAS P JOSEPH, JUDGE Sbna/