IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 14TH OCTOBER 2008 / 22ND ASWINA 1930 Crl.Rev.Pet.No. 467 of 2002() ----------------------------- CRA.320/2001 of ADDL. SESSIONS COURT, ALAPPUZHA CC.423/1999 of JUDL.MAGISTRATE OF FIRST CLASS, AMABALAPUZHA .................... PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------- JAYA VARGHESE, AGED 38 YEARS, D/O. THOMAS, PONGASSERIL VELIYIL HOUSE, SOUTH ARYAD, GURUPURAM, AVALOOKUNNU, ALAPPUZHA. BY ADV. SRI.S.SANAL KUMAR RESPONDENTS/COMPLAINANT AND STATE: -------------------------------------------------------- 1. ABDUL KALAM, S/O. SHERIFF, THRIVELIKAKAM, KAKKAZHAM, AMBALAPUZHA, ALAPPUZHA. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR ADV. SRI. PUZHAKKARA MUHAMMED THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL. R.P.No. 467/2002 ORDER ON CRL.M.P.NO. 3116/2002 IN CRL. R.P.NO. 467/2002 DISMISSED. SD/- THOMAS P. JOSEPH, JUDGE. 14.10.2008 /TRUE COPY/ P.A. TO JUDGE. vkm THOMAS P. JOSEPH, J. ----------------------------- CRL. R. P.No.467 of 2002 -------------------------------- Dated this the 14th day of October, 2008 O R D E R Heard counsel for revision petitioner. First respondent and counsel remained absent. There is no representation. 2. First respondent preferred a complaint against the revision petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short the Act). Learned magistrate found the revision petitioner guilty, convicted and sentenced her to undergo simple imprisonment for six months. In the appeal preferred by her, conviction was confirmed but sentence was modified as simple imprisonment for 3 months with a direction for payment of Rs.75,000/- as compensation to the first respondent. Counsel for revision petitioner submitted that due execution of the cheque is not proved and that at any rate, the cheque was not for the discharge of any debt or liability. It is also submitted that sentence awarded is excessive. 3. Case pleaded by the first respondent is that revision petitioner borrowed Rs.70,000/- on 30/04/1999 and issued cheque dated CRL. R. P.No.467 /2002 2 30/05/1999 for discharge of that debt. He presented the cheque through his bank on 4/08/1999, but it was returned on 6/08/1999 for want of funds. First respondent got dishonour intimation on 10/08/1999. He issued notice to the revision petitioner on 20/08/1999. Postal authorities gave intimation to the revision petitioner on 21/08/1999 but as she did not claim the notice, it was returned as unclaimed on 4/09/1999. That was followed by a private complaint. First respondent gave evidence PW1 and spoke to his case. Suggestion put to the first respondent was that his uncle is running a jewelery shop, revision petitioner had introduced to him one Amrutharajan, who purchased ornaments from that jewelery shop but failed to pay the amount. Thereon, first respondent and his uncle wrongfully confined the revision petitioner in a room, and coerced her to issue the cheque. First respondent denied the suggestion. 4. It is true that first respondent in the course of his evidence stated that the revision petitioner had offered to repay the amount before 30/05/1999 and as security for that, issued the cheque. That statement did not mean that Exhibit P1 was issued merely as security. CRL. R. P.No.467 /2002 3 A post dated cheque is a bill of exchange till the date shown in it and therefore is a security till that day. It assumes the character of negotiability on the due date. Here, the due date is 30/05/1999. Therefore till 30/5/1999, Exhibit P1 continued to be a security and became a cheque on 30/05/1999. First respondent has also clarified his statement in the re-examination. Therefore, the contention that Exhibit P1 was only a security and not for the discharge of debt, cannot be accepted. 5. Though learned magistrate observed in para 3 of the judgment that revision petitioner examined DW1. Copy of the proceeding paper shows that no defence witness was examined. The index paper prepared in the trial court also does not show that any such witness was examined. Due execution of the cheque is proved by the evidence of first respondent. Revision petitioner was not able to rebut the presumption arising under Section 139 of the Act. 6. Exhibits P4 and P6 show that statutory notice was issued to the revision petitioner in her correct address. Exhibit P6 shows that intimation was given to the revision petitioner on 21/08/1999 but she CRL. R. P.No.467 /2002 4 remained absent on 23/08/1999 when notice was attempted to be served on her. Again intimation was dropped on 31/08/1999 but she was absent on 1/09/1999 when another attempt was made to serve notice and hence notice was returned as unclaimed. First respondent has discharged his obligation to send notice to the revision petitioner in the correct address. On the materials on record it can be taken that there is deemed service of notice on the revision petitioner. Conviction of the revision petitioner requires no interference. 7. Considering the nature of offence, I am inclined to think that simple imprisonment till the rising of court is sufficient punishment. At the same time, revision petitioner has to undergo imprisonment for two months in case she fails to pay compensation as ordered by learned Sessions Judge. Revision petition is therefore allowed in part in the following lines. 1. Substantive sentence awarded to the revision petitioner is modified as simple imprisonment till the rising of court. CRL. R. P.No.467 /2002 5 3. Revision petitioner is granted two months time to deposit in the trial court compensation ordered by learned Additional Session Jude, failing which she shall undergo simple imprisonment for two months. Revision petitioner shall surrender in the trial court on 17/12/2008 to receive the sentence. Bail bond is cancelled. Criminal Miscellaneous Petition No.3116 of 2002 shall stand dismissed. THOMAS P. JOSEPH, JUDGE scm