IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 31ST JANUARY 2011 / 11TH MAGHA 1932 Crl.Rev.Pet.No. 566 of 2005(A) ------------------------------ CRA.549/2003 of ADDL. SESSIONS COURT (ADHOC), THRISSUR CC.173/2000 of JUDL. MAGISTRTE OF FIRST CLASS COURT-III, THRISSUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- VANAJAKSHI, AGED 55, D/O. LAKSHMIKUTTYAMMA, MANISSERY HOUSE, MARAR ROAD, THRISSUR. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENT(S): COMPLAINANT & STATE : ------------------------------------ 1. RAKESH, S/O. RAMAKRISHNAN, INICKAL HOUSE MADAIKONAM VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.RAJIT PUBLIC PROSECUTOR SRI.K.B.RAMANAND THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 31/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.A.NO.2998/2005 IN CRL.R.P.No.566/2005 DISMISSED 31-01-2011 Sd/-, P.Q.BARKATH ALI, JUDGE /True Copy/ PA to Judge P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.566 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 31st day of January, 2011 ORDER Revision petitioner is the accused in C.C.No.173/2000 on the file of Judicial First Class Magistrate Court III, Thrissur and appellant in Crl.Appeal No.549/2003 of III Addl. Sessions Court, Thrissur. The learned Magistrate by judgment dated July 23, 2003 convicted her under Section 138 of Negotiable Instruments Act and sentenced her to undergo simple imprisonment for three months and to pay a compensation of Rs. 75,000/-. On appeal by the accused, the learned Sessions Judge by judgment dated November 20, 2004 modified the sentence to imprisonment till the rising of court and to pay a compensation of Rs. 75,000/-, in default to undergo simple imprisonment for two months. The accused has now come up in revision challenging his conviction and sentence. 2. The case of the first respondent/complainant as testified by him as PW1 before the trial court and as detailed in the complaint was Crl.R.P.No.566/2005 2 that the accused borrowed Rs. 75,000/- from him on July 10, 1999 and to discharge that liability, he issued the cheque Ext.P1 dated September 15, 1999 drawn on the Thrissur branch of Urban Co-operative Society Bank which when presented for collection was returned dishounoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of notice Ext.P4 dated October 29, 1999, the accused did not repay the amount which is an offence punishable under Section 138 of Negotiable Instruments Act. 3. On receipt of the complaint, the learned Magistrate recorded the sworn statement of the complainant PW1 and took cognizance of the offence. The accused on appearance before the trial court pleaded not guilty to a charge under Section 138 of Negotiable Instruments Act. PW 1 was examined and Exts.P1 to P8 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the accused denied the entire transaction. DW1 was examined and Ext.D1 was produced on the side of the accused. 4. The learned Magistrate on an appreciation of evidence found the revision petitioner guilty of the offence punishable under Crl.R.P.No.566/2005 3 Section 138 of Negotiable Instruments Act, convicted her thereunder and sentenced her as aforesaid. On appeal, the learned Sessions Judge confirmed her conviction, but modified the sentence as aforesaid. The accused has now come up in revision challenging her conviction and sentence. 5. Heard the counsel for the revision petitioner/accused and the counsel for the revision first respondent/complainant. 6. The following points arise for consideration : 1) Whether the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act rendered by the trial court which is confirmed in appeal can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? Point No.1 7. Complainant as PW1 testified in a convincing manner before the trial court regarding the transaction. Nothing was brought out during his cross examination to disbelieve his evidence. Further his evidence is supported by Exts.P1 to P8. 8. The specific case of the accused as testified by her as DW1 before the lower court was that she had ready made dress business Crl.R.P.No.566/2005 4 during 1997 and at that time, she has purchased some clothes from the shop of the mother of PW1 for which she has given a blank signed cheque as security and the accused has misused that cheque and created Ext.P1. But no reliable evidence was adduced by the accused to prove her case. Ext.D1, the bill for having purchased clothes from the shop of the mother of PW1 does not in any way prove her case. As the accused has admitted the issuance of Ext.P1 cheque, presumption as envisaged under Section 118 and 139 of Negotiable Instruments Act is available to the complainant. No reliable evidence was adduced by the accused to rebut the above presumption. Therefore, the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act is confirmed. Point No.2 10. As regards the sentence, the Trial court imposed a sentence of simple imprisonment for three months and to pay a compensation of Rs. 75,000/-. The lower appellate court modified the sentence to imprisonment till the rising of court, but retained the direction to pay compensation. The appellate court has also imposed a default sentence Crl.R.P.No.566/2005 5 in the case of non-payment of compensation. I find no special reason to reduce the sentence. Therefore, confirming the conviction and sentence of the revision petitioner by the trial court which is modified by the lower appellate court, this revision petition is dismissed. Revision petitioner shall surrender before the trial court on or before February 28, 2011 to suffer the sentence. As regards the compensation directed to be paid, Rs.20,000/- deposited by the revision petitioner before the trial court shall be adjusted towards the compensation ordered to be paid. She shall pay the balance amount of compensation within three months from this date. Her bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.566/2005 6