IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 Crl.Rev.Pet.No. 1820 of 2009() ------------------------------ CRA.86/2008 of II ADDL. SESSIONS COURT, TRIVANDRUM CC.30/2003 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KATTAKADA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- BEENA, CLERK, SUB REGISTRAR OFFICE, MALAYINKEEZHU P.O., THIRUVANANTHAPURAM. BY ADV. SRI.B.KRISHNA MANI RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------- 1. BALAKRISHNAN NAIR, SURESH BHAVAN, SANTHUMOOLA, MALAYINKEEZHU P.O., THIRUVANANTHAPURAM. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1820 of 2009 -------------------------------------- Dated this the 10th day of June, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to make and which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2. 2. Petitioner against whom the courts below entered a concurrent finding that she issued the cheque for Rs.1,00,000/- for the discharge of a legally enforceable debt/liability and thereby committed offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act) has come up in revision. 3. According to respondent No.1, petitioner borrowed Rs.1,00,000/- from him and for the discharge of that liability issued Ext.P1, cheque dated 22.10.2002. That cheque on presentation was dishonoured for insufficiency of funds on 18.11.2002 as proved by Exts.P2 and P3. Thereon respondent No.1 issued statutory notice to the petitioner on 27.11.2002 which the petitioner received on 30.11.2002. Issue and service of notice are proved by Exts.P4 to P6. Petitioner sent Ext.P7, reply contending that she had borrowed only Rs.28,000/- from respondent No.1 and at that time had given four signed blank cheques. Respondent No.1 gave evidence as PW1 and testified to his case. He asserted that petitioner borrowed Rs.1,00,000/- from him and that for the Crl.R.P.No.1820/2009 2 discharge of that liability issued Ext.P1, cheque. When questioned under Section 313 of the Code of Criminal Procedure (for short, “the Code”), petitioner contended that she had no transaction with respondent No.1 and that he is not even known to her. According to the petitioner, she had borrowed Rs.15,000/- from one V.K.Rameshan and given two blank cheques as security. Though she paid the principal amount to V.K.Rameshan, cheques were not returned and one of those cheques was misused. It is contended by the learned counsel that the finding of the courts below regarding execution of the cheque is not correct. 4. It is true that it is open to an accused to raise inconsistent or contradictory pleas. But when appreciating the evidence that petitioner has no consistent case will also be relevant. In this case as against contention raised by the petitioner that she does not even know respondent No.1 and had no transaction with him, what is stated in Ext.P6, reply sent on her behalf is that she had borrowed Rs.28,000/- from respondent No.1 and given four signed blank cheques. Therefore contention of petitioner that respondent No.1 is a stranger to her and there is no transaction between them cannot be accepted. There is no evidence to show either that petitioner had any transaction with V.K.Rameshan or that as security Ext.P1, cheque was given. There is also no evidence to show that petitioner had borrowed Rs.28,000/- from respondent No.1. Nothing is brought out to disbelieve the evidence of respondent No.1. Courts below in the circumstances are justified in holding that the petitioner issued the cheque in question for the discharge of a legally enforceable debt/liability and that she failed to rebut the presumption under Section 139 of Crl.R.P.No.1820/2009 3 the Act. Hence conviction of the petitioner is legal and proper and required no interference. 5. Learned magistrate sentenced the petitioner to undergo simple imprisonment for three months and pay Rs.1,00,000/- as compensation. In default of payment of compensation, petitioner was directed to undergo simple imprisonment for six months. In appeal, learned Additional Sessions Judge confirmed the substantive sentence and the direction for payment of compensation but reduced the default sentence (six months) to three months. Learned counsel contends that the sentence awarded is excessive. Considering the facts and circumstances of the case and the nature of offence committed, I am satisfied that simple imprisonment till rising of the court and fine of Rs.1,00,000/- is sufficient in the ends of justice. In case of non-payment of fine, petitioner shall undergo simple imprisonment for three months. Fine if realised shall be paid to respondent No.1 as compensation under Section 357(1) of the Code. 6. Learned counsel requested four months' time to deposit the fine in the trial court. Considering the facts and circumstances of the case, I am inclined to grant three months' time to the petitioner to deposit the fine. Resultantly, this revision is allowed in part to the following extent: i. Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. ii. Petitioner is sentenced to pay fine of Rs.1,00,000/- (Rupees One lakh only) in the trial court and in default of payment to undergo simple Crl.R.P.No.1820/2009 4 imprisonment for three months. Fine if realised shall be given to respondent No.1 as compensation under Section 37591) of the Code. iii. Petitioner is granted three months time to deposit the fine in the trial court. iv. Petitioner shall appear in the trial court on 14.9.2009 to receive the sentence. Crl.M.A.No.5502 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks