IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 11TH OCTOBER 2011 / 19TH ASWINA 1933 Crl.Rev.Pet.No. 2366 of 2011() ---------------------------------------- CRA.445/2009 of ADDL.SESSIONS COURT (ADHOC), KOTTAYAM ST.1174/2009 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM .................... REVN. PETITIONER(S): APPELLANT/ ACCUSED -------------------------------------------------------------------- MARY THANKACHAN, W/O. THANKACHAN, MARIAN SENIOR SECONDARY SCHOOL, KALATHIPPADY, KOTTAYAM. BY ADV. SRI.A.K.HARIDAS RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ------------------------------------------------------------------------------------ 1. JIJU CHERIAN, S/O. CHERIAN, PALATHARAPPADI HOUSE, PARAMPUZHA.P.O, KOTTAYAM - 685 582. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. R2 BY PUBLIC PROSECUTOR SRI.M.R.VENUGOPAL THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss S.S.SATHEESACHANDRAN, J -------------------------------------- Crl. R.P No.2366 OF 2011 ----------------------------------------- Dated this the 11th day of October 2011 ORDER Revision is by the accused who has been convicted of the offence under Section 138 of the Negotiable Instruments Act (for short, NI Act), concurrently, by the two inferior courts. Negativing her plea of not guilty, on her conviction, the learned Magistrate sentenced her to undergo simple imprisonment for a day, till the rising of the court and to pay fine of `.25,000/-, the cheque amount, with default term of simple imprisonment for one month. Fine amount, if realised, was directed to be paid as compensation with the complainant. The learned Sessions Judge, affirming the conviction and sentence, has dismissed the appeal preferred by the accused. Feeling aggrieved, she has preferred this revision. 2. The learned counsel for the revision petitioner/accused assails the conviction concurrently rendered by the two inferior courts contending that in the complaint nor in the proof affidavit filed by the complainant, in lieu of his examination in chief, there was any averments as to due execution of the cheque by the accused. The accused had denied the transaction relating to the cheque alleged by the complainant and also disputed the execution of that instrument. She had contended that her husband had borrowed a sum of `.5,000/- Crl.R.P. No.2366 OF 2011 2 much prior to the date of the transaction alleged by the complainant, handing over a blank signed cheque as security and the liability under such transaction had been discharged by subsequent payment. The defence so canvassed was asserted by both the accused and her husband, examined as DW2 and DW1 respectively in the case. Without appreciating the defence so canvassed for and also ignoring that no convincing material has been tendered to prove the transaction and due execution of the cheque, the courts below, both of them, had entered a conviction against the accused, is the submission of the counsel. 3. Going through the judgments rendered by the learned Magistrate and also the learned Sessions Judge, I find no merit in any of the challenges mooted by the counsel to assail the conviction. Statutory notice issued intimating dishonour of the cheque, it is seen, was not even responded to by the accused. She had contended that a reply was given, but, no material thereof in support of that plea was tendered before the court. Further more, it is seen from the judgment rendered by the learned Magistrate that the assertion made by the complainant as PW1 over the execution of the cheque and also the source of consideration available with him for providing the loan advanced, there was no challenge at all by the accused. In the complaint and also in the chief affidavit there is Crl.R.P. No.2366 OF 2011 3 absence of averment as to execution of the cheque by the accused, the plea canvassed by the accused, has no merit at all when it is undisputed. The cheque dishonoured arose from an account maintained by the accused in a bank. She had contended that the cheque was issued towards a transaction which her husband had with the complainant for a lesser sum, in blank form with signature alone. The instrument contains her signature is also admitted to. The question is whether the entries were written in her hand or under her instructions. Though she had raised a contention that it was issued in blank form, no steps were taken by her to show that the other entries in the instrument were made by a different hand. There is no merit in any of the challenges canvassed by the accused denying the execution of the cheque and also the transaction with the complainant, which, both the courts, on the materials placed, found established convincingly by positive legal evidence. Conviction and sentence of the accused, it is seen, is supported by unimpeachable legal evidence tendered in the case. Revision fails, and it is dismissed. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge