IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 7TH AUGUST 2009 / 16TH SRAVANA 1931 Crl.Rev.Pet.No. 2509 of 2009() ------------------------------ CRA.632/2004 of ADDL. SESSIONS COURT (ADHOC)-II, PALAKKAD CC.356/2000 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ALATHUR .................... REVN. PETITIONER/ APPELLANT/ACCUSED: -------------------------------------- ANNAPOORNI, W/O. LAKSHMANAN, AYILOOR VILLAGE, CORNER STREET, CHITTUR. BY ADV. SRI.P.VIJAYA BHANU RESPONDENTS/RESPONDENTS/ COMPLAINANT AND STATE: --------------------------------------------------- 1. SUDEVAN, S/O. MADHAVAN, AYILOOR VILLAGE CHEVAKULAM VEEDU, CHITTUR. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNKULAM. Public Prosecutor : SRI C S HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No. 2509 of 2009 --------------------------------------- Dated this 07th day of August 2009 ORDER This revision is in challenge of judgment of learned Additional Sessions Judge, Fast Track No-II, Palakkad in criminal appeal No.632 of 2004 confirming conviction and sentence of petitioner for offence punishable under section 138 of the Negotiable Instruments Act. According to respondent No.1, petitioner borrowed Rs.75000/- from him and for repayment of that amount issued Ext.P1, cheque dated 23/03/2000. Dishonour of that which for insufficiency of funds is proved by Ext.P2 and evidence of PW2, Secretary of the drawee bank. Service of statutory notice on petitioner is proved by Exts.P3 series and P4. Respondent No.1 gave evidence as PW1 and stated to his case. According to the petitioner, she had no necessity or occasion to borrow any such amount from respondent No.1 since she had sufficient funds with her. It is also her case that respondent No.1 came to her office in the school belonging to her on 17-03-2000 at a time when she was at Chennai and forceably took Rs.9300/- and two cheque leafs from her office. On 31-03-2000 when she came back she learnt about that incident. It is also her contention that respondent No.1 had confessed to her what had happened and agreed to return the amount and the cheques. One of those cheques has been misused. Petitioner gave evidence as DW2 in that line. DW1 is a colleague of petitioner in Crl.R.P.No.2509 of 2009 2 the same school. She stated that on 13-07-2000 respondent No.1 came to the office of petitioner in the school and took away the cheque leafs. Learned magistrate was not impressed by contention raised by petitioner and found her guilty. Appellate court confirmed. That concurrent finding is under challenge. Learned counsel contended that on view of evidence of DWs.1 and 2 courts below were not justified in holding in favour of due execution of the cheque. It is also contended that signature in Ext.P1 is not proved to be that of petitioner. 2. No doubt, the expert to whom the cheque was send for examination returned the cheque. He was not able to form any definite opinion in the matter and according to him probability is that the signature in Ext.P1 is that of petitioner. The expert has not been examined by either side but his report is examined as Ext.P12. Ext.P12 is not in any way helpful to the petitioner and on the other way it indicated that possibility of signature in Ext.P1 being of petitioner cannot be ruled out. As to the alleged execution of the cheque respondent No.1 has given evidence. He claimed that Ext.P6, an agreement allegedly executed by petitioner in his favour stating that she had taken Rs. 65000/- from him on 21-05-1997 undertaking to repay the same within 31-07-1999 with interest at the rate 17% per annum. Crl.R.P.No.2509 of 2009 3 3. On the other side, DW1 stated about petitioner barging into the office room of petitioner in the school by forcely taking away the cheques. It is interesting to note that no legal action was taken against petitioner for that alleged act. Even though petitioner claimed that she learned about the incident on 31-03-2000. DW1 claimed that she was present in the school on 11-03-2000. But Ext.D3, attendance register does not show that DW1 signed the attendance register on 11- 03-2000. Of course she has an explanation that she was engaged in other official duty in the school. Even then if she was present in school for duty on that day she would have marked her attendance in the register. It has also come in evidence that DW1 is a colleague of petitioner. Learned magistrate did not accept the evidence of DW1. 4. So far as petitioner is concerned though she stated various reasons to show she has sufficient funds and is reasonably affluent enough so that she need not have to borrow any amount from respondent No.1, it came out that for the purpose of running the school she had to take loan from the bank. Courts below observed that affluence claimed by petitioner is not reflected in Ext.P10, ledger extracted of her account. A further fact to be taken note of is that even before the statutory notice, respondent No.1 had demanded payment of the amount in writing twice but never, there was a reply from petitioner denying the claim of respondent No.1. It is thereafter Crl.R.P.No.2509 of 2009 4 according to respondent No.1, petitioner issued the cheque in question. After its dishonour, a registered notice was served on petitioner which also went without any response. In the circumstances, courts below are justified in holding in favour of due execution of the cheque. There is little reason to differ. 5. Learned magistrate sentenced petitioner to undergo simple imprisonment for one month and directed payment of compensation of Rs.75000/- to respondent No.1. Default sentence of simple imprisonment for one month was also provided. Appellate court did not interfere with the sentence. It is contended by learned counsel that sentence awarded is excessive. Learned counsel requested that petitioner may be granted six months' time to deposit compensation. He stated about the difficulties being experienced by petitioner to raise the amount. 6. Having regard to the nature of offence and object of legislation I am satisfied that simple imprisonment till rising of the court is sufficient in the ends of justice. There is however no reason to interfere with direction for payment of compensation at the instance of petitioner. Since substantive sentence is being modified and considering the amount involved petitioner has to undergo simple imprisonment for two months in case compensation is not paid. Petitioner is granted time till 21-12-2009 to deposit compensation. Crl.R.P.No.2509 of 2009 5 Resultantly this revision is allowed in part to the following extent: 1. Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. 2. Petitioner is granted time till 21-12-2009 to deposit compensation as ordered by learned magistrate. In case of failure petitioner had to undergo simple imprisonment for two months. 3. It is made clear that it will be sufficient compliance of the direction for deposit of compensation if petitioner paid compensation to respondent No.1 through her counsel in the trial court and respondent No.1 filed a statement in the trial court through his counsel acknowledging receipt of the amount within the period aforesaid. 4. Petitioner shall appear in the trial court on 22-12-2009 to receive the sentence. THOMAS P JOSEPH, JUDGE Sbna/