IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 7TH OCTOBER 2009 / 15TH ASWINA 1931 Crl.Rev.Pet.No. 3123 of 2009() ------------------------------ REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- LALITHAMMA, KARTHIKA, KIZHAVOOR, MUKHATHALA, KOLLAM. BY ADV. SRI.V.V.RAJA RESPONDENT(S): COMPLAINANT -------------------------- 1. SIVASANKARA PILLAI, LEKSHMI NIVAS, PANKONAM, MUKHATHALA, KOLLAM. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.RITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S. GOPINATHAN, J. -------------------------------------------- Crl. R.P.No. 3123 of 2009 --------------------------------------------- Dated this the 7th day of October, 2009 ORDER Revision petitioner is the accused in C.C.No.746/2002 on the file of Judicial Magistrate of the First Class – II, Kollam. On 15.2.2001, she had borrowed an amount of Rs.90,000/- from the first respondent. In discharge, the revision petitioner issued a cheque for the said amount. When it was sent for collection, it was dishonored for “insufficient funds”. No amount was paid, despite the acknowledgment of notice demanding discharge of liability. First respondent prosecuted the revision petitioner on the above allegation, alleging offence under Section 138 of Negotiable Instruments Act. 2. Responding to the process, revision petitioner appeared before the trial court and pleaded not guilty. On the side of the first respondent PW1 was examined and Ext.P1 to P6 were marked. When questioned under Section CRL. R.P.NO.3123/2009 2 313 of the code of Criminal Procedure, revision petitioner stated that she had issued blank cheque to her brother to offer as a security for availing a loan. Though the liability was discharged, the cheque was not returned and misusing the cheque, prosecution was launched. She entered the witness box and adduced evidence in support of her plea. Ext. D1 was also marked. Learned Magistrate on appeal of evidence found against the revision petitioner. Consequently, she was convicted and sentenced to simple imprisonment for six months and a fine of Rs.5,000/-, with a default sentence of simple imprisonment for two months. In appeal, the Additional Sessions Judge, Kollam, by Judgment dated 30.06.09 confirmed the conviction and sentence. Assailing the legality correctness and propriety of the above conviction and sentence, this revision petition was preferred. 3. Having heard the learned counsel for the revision CRL. R.P.NO.3123/2009 3 petitioner and perusing the judgment impugned, I find that the first respondent through his power of attorney, who was examined as PW1 supported by Exts.P1 to P6 had succeeded to establish that the revision petitioner owed a sum of Rs.90,000/- and issued Ext.P2 cheque in discharge of that liability. When Ext.P2 was sent for collection, it was dishonored for insufficiency of funds as evidenced by Ext.P3 memo. Demanding discharge of the liability, a lawyer notice, copy of which was marked as Ext.P4 was issued. Despite, the acknowledgment of the notice as evidenced by Ext.P6, the liability was not discharged. Though the revision petitioner entered the witness box to substantiate her case, she could not withstand the cross examination. Resultingly, her evidence turned inconsistent. The appellate Court discussed the evidence of DW1, in detail and found incredible for cogent reasons. She could not substantiate her case that Ext.P2 was issued as a security to her brother for availing loan and the said liability was discharged. It is CRL. R.P.NO.3123/2009 4 in that circumstance, PW1 was believed in preference to the revision petitioner. Evidence of PW1 is supported by the presumptions under Section 118 and 139 of the Negotiable Instruments Act. The revision petitioner miserably failed in her attempt to rebut the presumption. In that circumstance, Courts below were justified in finding against the revision petitioner. I find no reason to interfere with the concurrent finding of guilt. Conviction is unassailable. 4. Taking into account that the revision petitioner is a lady and that she had issued Ext.P2 cheque, probably in discharge of the liability of her brother, I find that the revision petitioner is entitled to leniency in sentence and that a sentence of imprisonment till rising of the Court with direction to pay compensation would meet the ends of justice. In the result, the revision petition is allowed in part. CRL. R.P.NO.3123/2009 5 While confirming the conviction, the substantive sentence is reduced to imprisonment till rising of the Court with order to pay Rs.90,000/- (ninety thousand only) as compensation to the first respondent under Section 357(3) of the Code of Criminal Procedure. In default of payment of compensation the revision petitioner shall undergo simple imprisonment for six months. The revision petitioner is granted six months time for payment of compensation, provided she executes a bail bond for Rs.15,000/- (Rupees fifteen thousand only) with two solvent sureties each for the like sum to the satisfaction of the trial Court. P.S. GOPINATHAN, JUDGE ss