IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 30TH JUNE 2009 / 9TH ASHADHA 1931 Crl.Rev.Pet.No. 2070 of 2009() ------------------------------ CRA.849/2007 of ADDL.SESSIONS COURT, KOTTAYAM ST.71/2007 of JUDL. MAGISTRATE OF FIRST CLASS-II, CHENGANACHERRY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED. --------------------------------------- LALITHAKUMARI V.S., TEACHER, NSS ENGLISH MEDIUM HIGH SCHOOL, PERUNNA, CHANGANACHERRY. BY ADV. SRI.S.JAYAKRISHNAN RESPONDENT(S): COMPLAINANT/RESPONDENTS & STATE. ----------------------------------------------- 1. K.J.SAJIMON, KIZHAKKE KALATHIL, POOVAN WEST, PANACHIKAVU PO, KIDANGARA, 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA PUBLIC PROSECUTOR SHRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2070 of 2009 -------------------------------------- Dated this the 30th day of June, 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 him. Public Prosecutor takes notice for respondent No.2. 2. This revision is in challenge of judgment of learned Sessions Judge, Kottayam in Crl.Appeal No.849 of 2007 confirming conviction but modifying sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Respondent No.1 preferred a private complaint against the petitioner alleging that petitioner borrowed Rs.45,000/- from him and issued Ext.P1, cheque dated 30.12.2004 for the said amount in repayment. That cheque was dishonoured for insufficiency of funds. On getting information about dishonour respondent No.1 issued notice to petitioner intimating dishonour and demanding payment of the amount. Notice was served on petitioner but she did not pay the amount. Cause of dishonour and issue and service of notice are proved by Exts.P4 to P6. It is contended by learned counsel that finding of the courts below regarding execution of the cheque is not correct. 3. Regarding the borrowel and execution of the cheque as claimed by respondent No.1, he had given evidence as PW1. According to the petitioner she borrowed only Rs.10,000/- from respondent No.1 and gave signed blank Crl.R.P.No.2070/2009 2 cheque as security. She admitted that the said amount is outstanding as a liability. Courts below did not accept the explanation of the petitioner and found in favour of respondent No.1. 4. Petitioner does not dispute that she drew the cheque on the account maintained by her and in connection with a financial transaction she had with respondent No.1 that cheque was given to him. Her only contention is that amount borrowed is Rs.10,000/-. On that contention what is available is only the suggestion made to respondent No.1 when he was in the box which he denied. Petitioner has not adduced any evidence or brought out circumstances to hold in favour of the contention she raised. She did not also respond to the notice served on her. It is in these circumstances that courts below accepted the evidence of respondent No.1 and found that petitioner issued the cheque for discharge of liability to the tune of Rs.45,000/-. I do not find reason to interfere with that finding. 5. Learned magistrate sentenced the petitioner to undergo simple imprisonment for three months and directed her to pay Rs.45,000/- to respondent No.1 as compensation and in default of payment to undergo simple imprisonment for one month. Appellate court modified the sentence as simple imprisonment till rising of the court and fine of Rs.45,000/- with default sentence of one month. It was directed that fine if realized will be paid to respondent No.1 as compensation. I do not find reason to interfere with the substantive sentence as modified by the appellate court, sentence of fine and the default sentence. 6. It is submitted by learned counsel that petitioner has been arrested this day and is now in the custody of Judicial Magistrate of First Class-II, Changanachery. Counsel requested four months' time to deposit the fine. It is Crl.R.P.No.2070/2009 3 made clear that the detention for the day will be sufficient so far as the substantive sentence awarded by the appellate court is concerned. Petitioner is granted three months' time to deposit the fine in the trial court. Resultantly, this revision is allowed in part to the following extent: i. Substantive sentence is modified as the period of detention already undergone by the petitioner. She shall be released forthwith if not required to be detained otherwise. ii. Petitioner is granted three months' time to deposit fine in the trial court as ordered by the appellate court. In case of failure, she shall undergo default sentence as directed by the appellate court. iii. In case petitioner failed to deposit fine in the trial court as aforesaid, she shall appear in the trial court on 5.10.2009 to receive the default sentence. Issue intimation to the court concerned. THOMAS P.JOSEPH, Judge. cks