IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 18TH SEPTEMBER 2009 / 27TH BHADRA 1931 Crl.Rev.Pet.No. 2873 of 2009() ------------------------------------------ CRA.56/2005 of ADDL. DIST. & SESSIONS FAST TRACK COURT-I (ADHOC), THIRUVANANTHAPURAM CC.534/2003 of JUDL. MAGISTRATE OF FIRST CLASS COURT, VARKALA .................... REVN. PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------- RAMLA, D/O.ABDUL WAHEED, PADINJATTUVILA HOUSE NO.255, VETTOOR PANCHAYATH WARD NO.1, CHILAKKOOR, VETTOOR VILLAGE, CHRAYINKIL TALUK. BY ADV. MR.C.R.SIVAKUMAR SMT.NIKHILA SOMAN RESPONDENTS/RESPONDENTS/COMPLAINANT: --------------------------------------------------------------------- 1. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. NASEEMA, D/O.ABDUL RAHIM, SUMAYYA MANZIL, VETTOOR VILLAGE. R1 BY PUBLIC PROSECUTOR MR.RITHWIK. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. P.S.GOPINATHAN, J. == = = = = = = = = = = = = = = = = = Crl.R.P.No.2873 of 2009. = = = == = = = = = = = = = = = = = = Dated this the 18th day of September, 2009. O R D E R Revision petitioner is the accused in CC.534/2003 on the file of the Judicial First Class Magistrate, Varkala. The second respondent herein prosecuted the revision petitioner alleging offence under Section 138 of the Negotiable Instruments Act. After due trial, the learned Magistrate arrived a conclusion of guilty. Consequently the revision petitioner was convicted and sentenced to undergo simple imprisonment for six months with a direction to pay Rs.Ten Lakhs as compensation to the second respondent. In default to pay the compensation the revision petitioner was ordered to undergo simple imprisonment for another six months. In appeal, the Addl.Sessions Judge, Adhoc-I, Thiruvananthapuram confirmed the conviction and sentence. Now the legality, correctness and propriety of the above judgment is under challenge in this revision petition. 2. I heard the learned counsel for the revision petitioner in detail and perused the impugned judgment. The second respondent as Pw1 had succeeded to establish that the revision petitioner borrowed a sum of Crl.R.P.No.2873 of 2009. -: 2 :- Rs.Ten Lakhs and in discharge of that liability Ext.P1 cheque dated 23.4.2002 drawn on Indian Overseas Bank, Puthanchantha branch was issued and that when Ext.P1 was sent for collection it was returned bounced along with Ext.P2 memo dated 17.6.2002. On 25.6.2002 the second respondent caused a lawyer notice, copy of which is marked as Ext.P4. But the liability was not discharged despite the acknowledgment of the notice dated 29.6.2002 as evidenced by Ext.P6. Neither there was any reply. The plea of the revision petitioner was that she had issued a cheque for Rs.5,000/- only. But she didn't care to adduce any evidence in support of that plea. In the above circumstance, the courts below had appreciated the evidence of Pw1 and arrived a conclusion that the 2nd respondent had succeeded to establish execution of Ext.P1 cheque. Once the execution is proved. it is for the revision petitioner to rebut the legal presumption under Sec.118 and 139 that it was not issued for valuable consideration or to discharge the liability. In the normal course, if the contention now taken is genuine, the respondent would have responded to the notice. The silence looms large. The defence now taken in trial appears to be one as a result of after thought. For want of any supporting evidence such defence is devoid of merit. I find no error or illegality or impropriety committed by the courts Crl.R.P.No.2873 of 2009. -: 3 :- below in arriving at a conclusion against the revision petitioner. Hence the conviction under challenge is unassailable. 3. The learned counsel for the revision petitioner submitted that the revision petitioner is a lady fish vendor and she deserves maximum leniency in sentence. I find some merit in the submission made by the learned counsel for the revision petitioner. Taking into account of the special circumstances and on gender consideration I find that a sentence of imprisonment till rising of the court would meet the ends of justice. The substantive sentence requires such modification. In the result, the revision petition is allowed in part. The substantive sentence is reduced to imprisonment till rising of the court. The revision petitioner is given six months time to pay the compensation on she executing a bail bond for Rs.25,000/- with two solvent sureties each for like amount to the satisfaction of the trial court within three weeks. P.S.GOPINATHAN, JUDGE. Kvs/-