IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 31ST JULY 2009 / 9TH SRAVANA 1931 Crl.Rev.Pet.No. 1981 of 2009() ------------------------------ CRA.286/2007 of ADDL. DISTRICT & SESSIONS COURT(ADHOC), FAST TRACK COURT-III, PATHANAMTHITTA ST.1537/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II,PATHANAMTHITTA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- BINDHU.V., AGED 35 YEARS, W/O.MURALEEDHARAN, KANNANMALATHEKKECHARUVIL, ATTACHAKKAL.P.O., KONNI, PATHANAMTHITTA DISTRICT. BY ADV. SRI. K.SHAJ SRI.SAJJU.S SMT.REXY ELIZABETH THOMAS RESPONDENT(S)/RESPONDENTS/COMPLAINANT/STATE -------------------------------- 1. D.PRASANNAKUMARI, W/O.KUNJUKUNJUKUTTY, EATTIMOOTTIL, KONNI THAZHAM, PATHANAMTHITTA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SHRI C.S.HRITHWIK FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 31/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1981 of 2009 -------------------------------------- Dated this the 31st day of July, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass in this revision which is not prejudicial to her. Public Prosecutor takes notice for respondent No.. 2. This revision is in challenge of judgment of learned Additional Sessions Judge (Adhoc), Fast Track Court-III, Pathanamthitta in Crl. Appeal No.286 of 2007 confirming conviction but modifying sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). According to respondent No.1, she had given Rs.10,30,000/- to the petitioner for arranging a seat for her daughter for MBBS course in Karnataka State during 2006-2007. Petitioner had undertaken to arrange the seat through her brother, DW1 but failed to do so. On respondent No.1 demanding repayment of the amount petitioner issued Ext.P1. cheque dated 3.8.2006 for the said sum of Rs.10,30,000/-. Dishonour of that cheque for insufficiency of funds is proved by Exts. P2 and P3. Issue and service of statutory notice on petitioner are proved by Exts.P5 to P10. Since the date of receipt of notice was not stated in the acknowledgment cards, respondent No.1 obtained information regarding that from the Superintendent of Postal Department, Pathanamthitta. Exts.P9 and P10 are the replies given by the Superintendent of Crl.R.P.No.1981/2009 2 Postal Department stating that notices were served on petitioner on 4.9.2006. Respondent No.1 gave evidence as PW1 and testified to the transaction and execution of the cheque. According to the petitioner, the amount was received for arranging admission for MBBS course for the academic year, 2005. Accordingly admission was arranged but respondent No.1 was not agreeable to pay further sum of Rupees three lakhs more. Hence the amount received was returned to respondent No.1. But petitioner retained the signed blank cheque which was given as security and has misused it. Petitioner examined her brother as DW1. DW1 stated that in August, 2005 respondent No.1 had come to his office seeking admission for her daughter for the academic year 2005 and agreed to pay Rs.27,00,000/- towards expenses. He arranged the seat but required a further sum of Rupees three lakhs more from respondent No.1 which she was not prepared to pay. Hence the amount received from respondent No.1 was returned to her by January, 2006 in four instalments. Respondent No.1 did not return the cheque which was given as security while receiving the amount from her. Courts below held that the contention of the petitioner cannot be accepted and found her guilty. In this revision it is contended that the concurrent finding is not correct. 3. It is not disputed that petitioner had agreed to arrange through DW1 admission for MBBS course for the daughter of respondent No.1. It is Crl.R.P.No.1981/2009 3 also not disputed that in connection with that respondent No.1 had paid money to DW1 through petitioner. That Exts.P1 is the cheque drawn by petitioner on the account maintained by her is also not disputed. It is seen from the statement of petitioner under Section 313 of the Code of Criminal Procedure that she admitted receipt of Rs.10,30,000/-. When evidence of respondent No.1 as PW1 that to arrange admission for MBBS course she paid Rs.10,30,000/- to the petitioner was put to the petitioner, she answered in the affirmative. She also admitted that for repayment of that amount she had issued the cheque. But she contended that the transaction was in the year, 2005 and the amount received was returned to respondent No.1 in January, 2006. Respondent No.1 when examined as PW1 admitted that she had paid money to petitioner for arranging admission for MBBS course for the year, 2005 also and since the admission could not be procured the amount was returned to her. But she claimed that again seeking admission during the year, 2006-2007 she paid Rs.10,30,000/- through the petitioner and for repayment of that amount, petitioner issued Ext.P1, the cheque. There is no evidence to show that Ext.P1 was taken by respondent No.1 in respect of the transaction that took place in the year, 2005. When the amount received during that year was repaid to respondent No.1, in the normal course petitioner would have ensured that the cheque was taken back. A further fact to be noted is that inspite of being served with a notice Crl.R.P.No.1981/2009 4 demanding a fabulous amount of Rs.10,30,000/- petitioner did not reply. Courts below found that evidence of DW1 is not acceptable and that there is no reason to disbelieve the evidence of respondent No.1. Respondent No.1 has produced Ext.P1 which casts liability on petitioner. Explanation offered by the petitioner as to how the cheques happened to be in the custody of respondent No.1 was found to be not acceptable. On going through the judgments under challenge and hearing counsel for petitioner, I find little reason to interfere with the concurrent finding regarding execution of the cheque. 4. While confirming the direction for payment of compensation of Rs.10,30,000/- to respondent No.1 and the default sentence of imprisonment for three months, appellate court modified the substantive sentence as simple imprisonment till rising of the court. There is no reason to interfere with the substantive sentence as modified or direction for payment of compensation and default sentence as confirmed by the appellate court. 5. It is requested by learned counsel that considering the amount involved and the fact that petitioner is not able to raise the entire amount immediately, she may be granted six months’ time to deposit compensation. Having regard to the circumstances stated by learned counsel and the amount involved I am inclined to grant time to the petitioner till 30.12.2009 to deposit compensation. Crl.R.P.No.1981/2009 5 Resultantly, this revision petition fails. It is dismissed. Petitioner is granted time till 30.12.2009 to deposit compensation in the trial court. Petitioner shall appear in the trial court on 31.12.2009 to receive the sentence. Until then execution of warrant if any against the petitioner will stand in abeyance. THOMAS P.JOSEPH, Judge. cks