IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 3RD DECEMBER 2009 / 12TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 1236 of 2001() ------------------------------ CRA.146/1994of ADDL. SESSIONS COURT-II, MAVELIKKARA ST.636/1993 of JUDL.MAGISTRATE OF FIRST CLASS, MAVELIKKARA .................... REVN. PETITIONER(S): APPELLANT - ACCUSED --------------------- BHANUMATHY, ANM, HEALTH CENTRE, EREZHA VADAKKUM MURI, CHETTIKULANGARA. BY ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE RESPONDENT(S): RESPONDENTS - COMPLAINANT & STATE --------------- 1. KRISHNANKUTTY, MUTHIRAKANDATHIL, EREZHA THEKKUM MURI, CHETTIKULANGARA VILLAGE, MAVELIKKARA TALUK. 2. STATE OF KERALA, REP, BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.K.HARILAL FOR R1 R2 BY PUBLIC PROSECUTOR SRI C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P. 1236 of 2001 ------------------------------------------------------ Dated: DECEMBER 3, 2009 ORDER The revision petitioner is the accused in ST Case No.636/1993 of the Judicial First Class Magistrate Court, Mavelikara, and the appellant in Crl.A.No.146/1994 of Additional Sessions Court-II, Mavelikara. She was convicted under sec.138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for one month and also to pay a fine of Rs.18,000/-, in default to undergo simple imprisonment for a further period of one month. On appeal her conviction was confirmed, but the sentence was modified to the effect that she was sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.5000/-, in default to undergo simple imprisonment for a further period of one month. The accused was also directed to pay compensation of Rs.18,000/- to the 1st respondent/complainant. The accused has now come up in revision challenging her conviction and sentence. 2. The case of the revision 1st respondent/complainant as testified by her as PW.1 before the trial court and as detailed in the complaint is that the accused borrowed Rs.18,000/- from the CRL. R.P. 1236 of 2001 2 complainant and to discharge that liability, she issued a cheque Ext.P1 dated January 7, 1993 drawn on the State Bank of Travancore, Mavelikara Branch, which when presented for collection was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of the notice Ext.P4 dated January 12, 1993, the accused did not repay the amount, which is an offence punishable under sec.138 of the Negotiable Instruments Act. 3. On receipt of the complaint, the learned Magistrate recorded the sworn statement of the complainant/PW.1 and took cognizance of the case. The accused on appearance before the trial court pleaded not guilty to the charge under sec.138 of the Negotiable Instruments Act. PWs.1 to 4 were examined and Exts.P1 to P4 were marked on the side of the complainant. When questioned under sec.313 Cr.P.C. the accused denied the entire transaction. DW.1 was examined on the side of the accused. 4. The learned magistrate on an appreciation of evidence found the accused guilty of the offence punishable under sec.138 of the Negotiable Instruments Act, convicted her thereunder and sentenced her as aforesaid. On appeal her conviction was confirmed but the sentence was modified as mentioned above. The accused has now up in revision challenging her conviction and sentence. CRL. R.P. 1236 of 2001 3 5. Heard the learned counsel for the revision 1st respondent/complainant. 6. The following points arise for consideration:- I. Whether the conviction of the revision petitioner under sec.138 of the Negotiable Instruments Act can be sustained? II. Whether the sentence imposed is excessive or unduly harsh? Point No.I 7. The complainant was examined as PW.1 and he produced Exts.P1 to P4 before the trial court to prove the guilt of the accused. PW.1 testified in terms of the complaint. No discrepancies were pointed out in cross-examination to discredit his evidence. His evidence is supported by Exts.P1 to P4. 8. The case of the accused when questioned by the trial court under sec.313 of Cr.P.C. was that her brother took away one of her cheque leaves and handed over the same to the complainant which was misused by him and created Ext.P1. No evidence was adduced by the accused to prove the same. Therefore both the courts below were right in rejecting the above contention of the accused. No other point is argued before me . For all these reasons I am inclined to hold CRL. R.P. 1236 of 2001 4 that the trial court as well as the lower appellate court is justified in accepting the evidence of PW.1 and coming to the conclusion that Ext.P1 cheque was issued by the revision petitioner which, when presented for collection, was returned dishonoured for want of sufficiency of funds in the account of the revision petitioner in the bank and that in spite of notice, the accused did not repay the amount which is an offence punishable under sec.138 of the Negotiable Instruments Act. Therefore I confirm the conviction of the accused under sec.138 of the Negotiable Instruments Act. Point No.II 9. As regards the sentence, the trial court imposed a sentence of simple imprisonment for one month and also to pay a fine of Rs.18,000/-. On appeal it was modified to simple imprisonment for six months and to pay a fine of Rs.5000/-. The accused was also directed to pay compensation of Rs.18,000/- to the 1st respondent/complainant. The accused is a lady. The transaction is of the year 1993. Taking into consideration all these aspects, I feel that a sentence of simple imprisonment till the rising of court and a fine of Rs.18,000/- would meet the ends of justice. In the result, the revision petition is allowed in part. The conviction of the revision petitioner/accused under sec.138 of the CRL. R.P. 1236 of 2001 5 Negotiable Instruments Act is confirmed. The sentence is modified to the effect that she is sentenced to undergo simple imprisonment till the rising of court and to pay a fine of Rs.18,000/-, in default to undergo simple imprisonment for three months. The fine, if realised, shall be paid to the complainant as compensation as provided under sec.357(1) Cr.P.C. The accused shall surrender before the trial court on or before 30.12.2009 to receive the sentence. Three months time is granted to pay the fine. His bail bonds are cancelled. P.Q. BARKATH ALI, JUDGE CRL.M.P.5942/2001 Dismissed. 3.12.2009. P.Q. BARKATH ALI, JUDGE mt/-