IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 26TH NOVEMBER 2009 / 5TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 3679 of 2009() ------------------------------ CRA.548/2007 of II ADDL. SESSIONS COURT, TRIVANDRUM ST.606/2006 of JUDICIAL MAGISTRATE OF FIRST CLASS-IX, TRIVANDRUM .................... REVN. PETITIONER: --------------------- ROSHINI SATHEESH, W/O.SATHEESH CHANDRAN VISHNU RAM, VETTU ROAD, KAZHAKOOTTAM, THIRUVANANTHAPURAM. BY ADV. SRI.H.B.SHENOY SRI.B.ASHOK SHENOY SMT.LAKSHMI B.SHENOY SRI.ABU MATHEW SRI.SOBHAN GEORGE SRI.K.V.GEORGE RESPONDENTS: --------------- 1. K.NAZARUDEEN, SULUS, NEAR NES BLOCK, KAZHAKOOTTAM,THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. PUBLIC PROSECUTOR SRI.HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ---------------------------------------- Crl.R.P.No.3679 of 2009 ---------------------------------------- Dated this the 26th day of November, 2009 ORDER The Judicial Magistrate of the First Class-IX, Thiruvananthapuram in S.T.No.606 of 2006 on his file convicted the revision petitioner for offence under Section 138 of the Negotiable Instruments Act and sentenced to simple imprisonment for six months and a fine of Rupees five lakhs with a default sentence of simple imprisonment for three months. The fine, on realisation was ordered to be paid to the first respondent as compensation. 2. Being aggrieved, the revision petitioner preferred Criminal Appeal No.548 of 2007. The Second Additional Sessions Judge, Thiruvananthapuram by judgment dated 27/8/2009 confirmed the conviction. The substantive sentence was reduced to imprisonment till rising of the court. The fine was substituted by a compensation of Rs.5,10,000/- with a default sentence of simple imprisonment for six months. 3. Assailing the legality, correctness and propriety of the above conviction and sentence as modified in appeal, this revision petition was filed. Crl.R.P.No.3679 of 2009 2 4. Having heard the learned counsel for the revision petitioner and perusing the judgments of the courts below and on going through the evidence of PW.1 and DW.1, I find that the first respondent had succeeded to establish that the revision petitioner owed a sum of Rupees five lakhs to the 1st respondent and in discharge of the said liability, Ext.P1 cheque dated 20/4/2004 drawn on State Bank of Travancore, Kazhakuttom branch was issued and that when Ext.P1 was sent for collection it was bounced for insufficiency of funds as evidenced by Ext.P2 memo dated 13/9/2004. Demanding discharge of the liability, a lawyer notice dated 27/9/2004, copy of which was marked as Ext.P3 was caused. Despite the acknowledgment of the notice as evidenced by Ext.P5 the liability was not discharged. 5. The revision petitioner took up a defence of total denial when questioned under Section 313 of the Code of Criminal Procedure. Her husband was examined as DW.1 and Ext.D1, a copy of the FIR in Crime No.195/04 was marked. Ext.D1 contains an allegation that the first respondent trespassed into the office premises of the revision petitioner, committed mischief, assault and had taken away some cheque Crl.R.P.No.3679 of 2009 3 leaves. However DW.1 had admitted that the revision petitioner had borrowed a sum of Rs.32 lakhs from the first respondent and 17 cheque leaves were obtained. There is no case for DW.1 that any of the amount so borrowed was repaid. So the case of the first respondent that revision petitioner owed amount to the first respondent is in fact established by the evidence of her husband. If DW.1 is believed, there is more liability. The evidence of DW.1 is silent as to whether Ext.P1 is one of the cheque leaves among the 17 cheque leaves which were said to have given by the revision petitioner at the time of borrowal of Rs.32 lakhs or whether it is any of the cheque leaves mentioned in Ext.D1. In the above circumstance the evidence of PW.1 has to be given credence. The appellate court had elaborately discussed the evidence of PW.1 as well as that of the DW.1. As observed by the appellate court, DW.1, the husband of the revision petitioner had even go to the extent of the deposing that he was not aware of the monetary transactions done by the revision petitioner. It is in the above circumstance, the appellate court found against the revision petitioner, on concluding that the evidence of PW.1 supported by the presumptions under Section 118 and 139 of the Crl.R.P.No.3679 of 2009 4 Negotiable Instruments Act that Ext.P1 was drawn for valuable consideration and issued in discharge of the liability could not be rebutted by the revision petitioner. I find no material to come to a conclusion that either the trial court or appellate court had any way gone wrong in appreciating the evidence. There is no error, illegality or impropriety in the conclusion arrived by the courts below in finding the revision petitioner guilty. I find that the conviction is based upon cogent evidence. 6. Despite the high amount covered by Ext.P1, the appellate court was very lenient in reducing the sentence to one of imprisonment till rising of the court and compensation. If at all erred in awarding sentence, it is only towards leniency. There is no reason to interfere with the sentence also. In the result, the revision petition is devoid of merits. Accordingly it is dismissed. The revision petitioner is granted six moths time to pay the compensation. Till then, the bail bond executed by her shall remain in force. P.S.GOPINATHAN, JUDGE skj.