IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931 Crl.Rev.Pet.No. 1970 of 2009() ------------------------------ CRA.289/2007 of ADDL. SESSIONS COURT (ADHOC)-II, ALAPPUZHA CC.929/2005 of JUDL.MAGISTRATE OF FIRST CLASS-II, CHERTHALA .................... REVISION PETITIONERS/ APPELLANTS/ACCUSERS: ------------------------------------------------------------------------------- MINI THYAGARAJAN, D/O.THYAGARAJAN, PANIKKATHU HOUSE, MARARIKULAM NORTH.P.O, POKLESSERI, CHERTHALA. BY ADV. MRI.BIJU ABRAHAM RESPONDENT(S): RESPONDENTS/ COMPLAINANT & STATE: ------------------------------------------------------------------------------------------ 1. K.P.GEORGEKUTTY, KARUKAPARAMBIL, KANICHUKULANGARA.P.O, CHERTHALA. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, ERNAKULAM. R1 BY ADV.MR.K.RAMANATHAN R2 BY PUBLIC PROSECUTOR MR. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.1970 of 2009 --------------------------------------- Dated this 02nd day of July 2009 ORDER This revision is in challenge of judgment of learned Additional Sessions Judge, Alappuzha in criminal appeal No.289 of 2007 confirming conviction and sentence of petitioner for offence punishable under Sec.138 of Negotiable Instruments Act. 2. Case arose on a complaint preferred by respondent No.1. He alleged that petitioner owed Rs.1,60,000/- to him and for repayment of that amount issued Ext.P1, cheque dated 01-11-03. That cheque was dishonoured for 'insufficiency of funds' as proved by Exts.P2 and P3. On getting intimation, respondent No.1 issued notice to the petitioner intimating dishonor and demanding payment of the amount. Issue and service of notice are proved by Exts.P4 series and Ext.P5. Respondent No.1 gave evidence as PW1 and testified to the transaction leading to execution of the cheque. Petitioner contended that she had no transaction with respondent No.1 nor had she issued any cheque. Courts below Crl.R.P.No.1970 of 2009 2 accepted evidence of respondent No.1 and found petitioner guilty. It is contented by learned counsel that finding of the court below is not correct and that petitioner did not get opportunity to cross examine respondent No.1 (PW1). 3. It is seen from the judgments under challenge that petitioner had not cross examined respondent No.1 (PW1). It is also seen that several opportunities were given to petitioner for the purpose but that was not availed. Petitioner had not even appeared in the trial court on many occasions and non-bailable warrant had to be issued to her to compel her presence. Petitioner filed an application under Sec.311 of the Code of Criminal Procedure to recall respondent No.1 (PW1). In spite of petitioner not availing the opportunities given to her for the purpose learned magistrate allowed that application on condition of payment of cost of Rs.750/- but cost was not paid and hence that application had to be dismissed. It is not as if petitioner did not get opportunity to cross examine respondent No.1. Instead she did not avail the several opportunities given to her. Hence she has no room to complain that Crl.R.P.No.1970 of 2009 3 no opportunity was given to her for cross examination of respondent No.1 There is no dispute that Ext.P1, the cheque is signed by the petitioner. There is no reason to disbelieve the evidence of respondent No.1 regarding transaction and execution of the cheque. Hence courts below are justified in holding petitioner guilty under Sec.138 of the Act. I find no reason to interfere. 4. Learned magistrate sentenced the petitioner to undergo simple imprisonment for six months and directed payment of compensation of Rs.160,000/-(Rupees One Lakh Sixty Thousand Only). Default sentence of imprisonment for three months was provided. Appellate court did not interfere. Learned counsel requested that leniency may be shown to the petitioner in the matter of substantive sentence and that she may be granted three months' time to deposit the compensation. Having regard to the nature of offence and circumstances stated by learned counsel I am inclined to grant three months' time to deposit compensation. Substantive sentence awarded to the petitioner is modified as Crl.R.P.No.1970 of 2009 4 simple imprisonment till rising of the court. Resultantly this revision is allowed in part to the following extent (i) Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. (ii) Petitioner is granted three months' time to deposit compensation as directed by learned magistrate in the trial court. In case of default, petitioner has to undergo imprisonment as directed by learned magistrate. (iii) Petitioner shall appear in the trial court on 05-10-09 to receive the sentence. THOMAS P JOSEPH, JUDGE Sbna/