IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 18TH MAY 2010 / 28TH VAISAKHA 1932 Crl.Rev.Pet.No. 1556 of 2010 ------------------------------ CRA.990/2007 of ADDL.SESSIONS COURT-III, KOZHIKODE ST.1988/2006 of THE SPECIAL JUDICIAL FIRST CLASS MAGISTRATE(MARAD CASES), KOSHIKODE .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- PUSHPALATHA.V., W/O.RAGHAVAN NAIR, AMBADI HOUSE, KUTHIRAVATTOM P.O., MAILAMBADI, KOZHIKODE DISTRICT. BY ADV. SRI.VINOD SINGH CHERIYAN SRI.R.SUDHISH RESPONDENTS: RESPONDENTS/COMPLAINANT AND STATE ------------------------------------------------ 1. P.MOHANAN, S/O.DAMODHARAN, PALADANKANDY HOUSE, NELLIOKODE (PO), KOZHIKDOE DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. R2 BY P.P. SMT. M.K.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl. R.P. No. 1556 OF 2010 ---------------------------------------- Dated 18th Day of May, 2010 ORDER The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the revision petitioner. Both the trial court as well as the lower appellate court found that the revision petitioner/accused is guilty under section 138 of the N.I.Act. 2. The case against the revision petitioner is that he had borrowed a sum of Rs.45,000/- from the complainant so as to settle a bank debt and towards the discharge of the said liability, the accused issued a cheque dated 18.9.2006 for Rs.45,000/- and the said cheque when presented for encashment was dishnoured for want of sufficient funds in the account maintained by the accused. After complying with the statutory formalities, the complainant approached the trial court by filing a complaint which was taken on file and took cognizance of the offence under section 138 of the NI Act. During the course of the trial, from the side of the CRRP 1556/10 -:2:- complainant, the complainant himself was examined as PW1 and adduced oral evidence. Besides that, he adduced documentary evidence such as Exts.P1 to P3(b). The revision petitioner/accused also gave evidence as DW1 and produced Exts.D1 and D1(a). The trial court found that the complainant had succeeded in establishing the case against the accused and accordingly, she was convicted and sentenced to undergo simple imprisonment for one month and to pay a sum of Rs.45,000/- to the complainant as compensation under section 357(3) Cr.P.C.. The default sentence fixed was simple imprisonment for one month. Though an appeal was preferred by the revision petitioner, by judgment dated 14.1.2010 in Crl.A. No.990/2007, the Sessions Court, Kozhikode, dismissed that appeal confirming the conviction and the sentence. It is the above conviction and sentence challenged in this Crl.R.P. 3. I have heard the learned Counsel appearing for the revision petitioner and also perused the impugned judgments of the courts below. The trial court as well as the lower CRRP 1556/10 -:3:- appellate court has concurrently found that the complainant has satisfactorily established the case regarding the transaction and as to how the cheque in question reached in the hands of the complainant. Both the courts found that though PW1 was cross examined, nothing brought on record to discredit the version given by PW1. From the discussion of the trail court as well as the lower appellate court that contained in the impugned judgments, it can be seen that, PW1, the complainant correctly stated about the transaction between the complainant and the revision petitioner and that with the support of the documentary evidence, the complainant has established the case against the accused. The accused took a plea to the effect that she had no transaction with the complainant and the cheque in question was in fact entrusted with one Soman, from whom she availed loan on two occasions. It is the further case of the accused that though the amount was repaid to the said Soman, the cheque which entrusted with him as security was not returned to the accused . It is the said cheque misused by the complainant to CRRP 1556/10 -:4:- file the complaint. In support of the above contention, the revision petitioner-accused herself deposed as DW1 and adduced Exts.D1 and D1(a) documents. The trial court elaborately considered the contention of the accused and perused the documents produced by the defence. Ext.D1 is a diary allegedly maintained by the accused. The trial court has specifically found that Ext.D1 cannot be treated as a document regularly maintained by the accused during her regular course of business. It is also found that entries are not made according to the date in that diary. Trial Court has also found that there was no mention in Ext.D1 diary regarding the cheque in question. So after considering the above materials and the defence version, the trial court has found that Ext.D1 is not sufficient to prove that Ext.P1 cheque was handed over to the above said Mr.Soman and the cheque alleged to have been given to Soman is the impugned cheque. In this juncture, it is pertinent to note that the revision petitioner/accused did not take any effort either to summon the said Soman with whom allegedly the cheque CRRP 1556/10 -:5:- in question was entrusted. Thus, from the entire materials and evidence on record relied on by the courts below, it can be seen that the complainant by adducing cogent and satisfactory evidence established his case against the accused and the inevitable consequence is that, the complainant is entitled to the statutory presumption under section139 of the NI Act. It is therefore the revision petitioner-accused has to rebut the presumption. But the suggestion made by the accused and the materials produced by her are not sufficient at least to probablise the case of the accused. This is the finding made by the trial court and the lower appellate court. Hence I find no illegality in the findings arrived on by the trial court as well as the lower appellate court. Therefore, there is no merit in this Crl.Revision Petition to interfere with the order of conviction imposed against the revision petitioner by the trial court as well as the lower appellate court. 4. The learned counsel for the revision petitioner submitted that the revision petitioner is a lady, who is CRRP 1556/10 -:6:- undergoing treatment and hence a lenient view may be taken and some time may be granted to effect the payment of compensation. 5. The alleged transaction was taken place on 18.9.2006 and thereafter 4 years are over. Therefore, time sought for by the counsel for the revision petitioner cannot be allowed as such. According to me three month's time can be given for making the payment of compensation on condition of enhancing the amount fixed by the courts below, which is sufficient to meet the ends of justice. 6. In the result, this Crl.R.P is disposed of confirming the conviction recorded by the trial court as well as the lower appellate court against the revision petitioner under section 138 of the Act. The sentence imposed against the revision petitioner-accused is reduced to till the rising of the court and the compensation ordered against the revision petitioner is enhanced to Rs.50,000/- and in case of default in paying the compensation amount, the revision petitioner shall undergo simple imprisonment for one month. Accordingly, the revision CRRP 1556/10 -:7:- petitioner is directed to appear before the trial court on 18.8.2010 to receive the sentence and to make the payment of compensation, as revised and refixed by this court and in case of the default on the part of the revision petitioner in appearing before the trial court as directed above, the trial court is free to take coercive steps to procure the presence of the petitioner and to execute the sentence and for the realisation of the compensation amount. This CRL.R.P is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- CRRP 1556/10 -:8:- V.K.MOHANAN, J. O.P.No. JUDGMENT Dated:..