IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 5TH OCTOBER 2009 / 13TH ASWINA 1931 Crl.Rev.Pet.No. 961 of 2002() ----------------------------- CRA.436/1999 of V ADDL.SESSIONS COURT, ERNAKULAM CC.725/1997 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- MRS. PHILOMINA JOSE, W/O. C.D. JOSE, H.NO.12/192, NEAR WATER TANK, KOOVAPPADAM, KOCHI-2. BY ADV. SRI.N.RAVIKUMARAN NAIR SRI.GEO PAUL SRI.SANU MATHEW SRI.E.A.THANKAPPAN RESPONDENT(S): RESPONDENT/COMPLAINANT: -------------------------------------- 1. MR. P.J. SEBASTIAN, S/O. JACOB, H.NO.14/156, CHULLICKAL, KOCHI-6. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.K.VINOD CHANDRAN FOR R1 SMT.LISSY DEVASSY FOR R1 PUBLIC PROSECUTOR SMT.REKHA. C NAIR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/09/2009, THE COURT ON 05/10/2009 PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 961 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of October, 2009 ORDER The revision petitioner is the accused in C.C.No.725/97 of Judicial First Class Magistrate Court, Kochi and appellant in Crl.Appeal No. 436/1999 of V Additional Sessions Court, Ernakulam. The accused was convicted under Section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for five months and to pay compensation of Rs. 50,000/- to the complainant. On appeal by the accused, the learned Sessions Judge confirmed the conviction and sentence of the accused. Now the accused has come up in revision challenging his conviction and sentence. 2. The case of the revision first respondent/complainant as testified by him as PW1 and as detailed in the complaint before the lower court is that the accused borrowed Rs. 81,000/- from the complainant for which she issued cheque - Ext.P1 dated 14-07-1997 for Rs. 81,000/- drawn on Mattanchery Mahajenic Co-operative Bank CRRP.No.961/02 Page numbers Ltd., Kochi which when presented for collection was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank and that inspite of the notice - Ext.P4 the accused did not repay the amount which is an offence punishable under Section 138 of the Negotiable Instruments Act. 3. The learned Magistrate on receipt of the complaint recorded the sworn statement of the complainant PW1 and took cognizance of the case. The accused/revision petitioner on appearance before the trial court pleaded not guilty to the charge under Section 138 of the Negotiable Instruments Act. PWs 1 and 2 were examined and Exts.P1 to P6 were marked on the side of the complainant before the trial court. When questioned under Section 313 Cr.P.C., the accused denied the entire transaction. No defence evidence was adduced. 4. The learned Magistrate on an appreciation of the evidence found the revision petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, convicted her thereunder and sentenced her as aforesaid. The lower appellate court confirmed her conviction and sentence. CRRP.No.961/02 Page numbers 5. The following points arise for consideration : 1) Whether the conviction of the revision petitioner in Section 138 of the Negotiable Instruments Act by the trial court which is confirmed in appeal can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? 6. Though several postings were given, counsel for the revision petitioner remained absent. Counsel for the first respondent/complainant was present. He was heard. Point No.1 7. The complainant as PW1 testified before the trial court in terms of the complaint . I have gone through the evidence of PW1, I find no suspicious inconsistencies or discrepancies in his evidence so as to discredit his evidence. Further his evidence is supported by Exts.P1 to P6 and PW2, the Manager of the bank. As the signature in Ext.P1 cheque is not disputed by the accused, presumptions under Sections 118 and 139 are available for the complainant. The accused did not adduce any evidence to rebut the above said presumption. CRRP.No.961/02 Page numbers Therefore, in my view, the trial court as well as the lower appellate court is perfectly justified in finding that the accused has issued the cheque Ext.P1 which when presented for collection was dishonoured for want of sufficiency of funds in the account of the accused in the bank and that inspite of notice Ext.P4, the accused did not repay the amount which is an offence punishable under Section 138 of the Negotiable Instruments Act. Therefore, I confirm the conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act rendered by the trial court which is confirmed in appeal. Point No.2 8. As regards the sentence, the trial court imposed simple imprisonment for five months. The trial court has also directed the accused to pay Rs. 50,000/- as compensation to PW1 as provided under Section 357(1) Cr.P.C. The Appellate court confirmed the said sentence. As the revision petitioner/accused is a lady and the transaction is of the year 1997, I feel that a fine of Rs. 81,000/- would meet the ends of justice. In the result, the revision petition is allowed in part. The CRRP.No.961/02 Page numbers conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act by the trial court which is confirmed in appeal is upheld. She is sentenced to pay a fine of Rs. 81,000/-, in default, to undergo simple imprisonment for three months. Fine amount, if realised, shall be paid to the complainant as compensation as provided under Section 357(1) Cr.P.C. Her bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv.