IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 Crl.Rev.Pet.No. 1827 of 2009() ------------------------------ CRA.312/2007 of ADDL. SESSIONS COURT, (ADHOC)I, PALAKKAD ST.349/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT, MANNARKAD .................... REVN. PETITIONER(S): REVISION PETITIONER/APPELLANT/ACCUSED ---------------------------------------------------------- PARUKUTTY,W/O.NARAYANAN,AATTAKKARAVEEDU, PAYYANADAM AMSOM,AKKIPADAM DESOM,MANNARKKAD. BY ADV. SRI.RAJESH NAMBIAR RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. RAMAKRISHNAN,S/O.LATE VELAYUDHAN, KALLINGAL VEEDU,PAYANADAM AMSOM,AKKIPADAM DESOM, MANNARKKAD. 2. STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1827 of 2009 -------------------------------------- Dated this the 10th day of June, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to make and which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2. 2. This revision is in challenge of judgment of learned Additional Sessions Judge, Adhoc-I, Palakkad in Crl.Appeal No.312 of 2007 confirming conviction but modifying sentence of the petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act). 3. According to respondent No.1, petitioner who is a neighbour entered into an agreement with him on 8.6.2004 for sale of 27.25 cents of land belonging to the petitioner for Rs.2,500/- per cent. Petitioner received Rs.55,000/- from respondent No.1 by way of advance. According to respondent No.1, he had spent Rs.15,000/- for effecting cultivation in the property agreed to be sold. Later, petitioner backed out from the agreement. Respondent No.1 preferred complaint to the C.I. of Police, Mannarkkad. There was a mediation as per which petitioner agreed to return the advance sum of Rs.55,000/- and the amount (Rs.15,000/-) respondent No.1 had spent for effecting cultivation in the property agreed to be sold. Out of that, petitioner paid Rs.29,000/- in cash and for the balance sum of Rs.41,000/- issued two cheques dated 10.11.2004 for Rs.21,000/- and dated 10.12.2004 for Rs.20,000/-. Those cheques were Crl.R.P.No.1827/2009 2 dishonoured for insufficiency of funds. On getting dishonour intimation, respondent No.1 issued notice to the petitioner intimating dishonour and demanding payment. Respondent No.1 gave evidence as PW1 and proved Exts.P1 to P4 series. Exts.P1 and P2 are the cheques referred above. Dishonour of those cheques for the above stated reason is proved by Ext.P3 series. Issue and service of notice to the petitioner are not disputed and are proved by Ext.P4 series. According to the petitioner, she had borrowed Rs.50,000/- from respondent No.1 in connection with her daughter's marriage and at that time given two signed blank cheques as security. The amount borrowed was later repaid with interest but the cheques were not returned. Petitioner did not adduce evidence in support of that contention. 4. Respondent No.1 has given evidence regarding the transaction which culminated in execution of the cheques in question. It is contended by learned counsel that the agreement referred in the complaint is not produced. But then, the complaint is for dishonour of the cheques, Exts.P1 and P2 for insufficiency of funds and for non-payment of the amount inspite of dishonour intimation and demand. It is not absolutely necessary that the original cause of action pleaded by respondent No.1 had to be proved. What is required to be pleaded and proved is the due execution of the cheques in question for the discharge of a legally enforceable debt/liability. In this case it is admitted by the petitioner also that Exts.P1 and P2 contained her signature, are drawn on the account maintained by her and she had given those cheques to respondent No.1 though according to her, as security for Rs.50,000/- she had taken as Crl.R.P.No.1827/2009 3 loan. But, petitioner did not adduce evidence or bring out any circumstances to prove or probabilise that she had taken a loan of Rs.50,000/-. At any rate there is no evidence to show that cheques were given in signed blank form as security or that the liability under the loan allegedly taken by the petitioner from respondent No.1 was discharged. It is pertinent to note that petitioner did not reply to the statutory notice. Nothing is brought out to disbelieve the evidence of respondent No.1. Courts below in these circumstances are justified in holding that the petitioner issued the cheques in question for the discharge of a legally enforceable debt/liability and that she failed to rebut the presumption under Section 139 of the Act. Hence conviction of the petitioner is legal and proper and required no interference. 5. Learned magistrate sentenced the petitioner to undergo simple imprisonment for three months and pay Rs.41,000/- as compensation. In default of payment of compensation, petitioner was directed to undergo simple imprisonment for 60 days. Appellate court confirmed conviction as well as the direction for payment of compensation. Learned counsel contends that petitioner and respondent No.1 are neighbours and that in the facts and circumstances of the case sentence may be modified. Learned counsel requested four months' time to deposit the compensation in the trial court. Considering the facts and circumstances of the case and the nature of the offence committed, I am satisfied that simple imprisonment till rising of the court, payment of compensation as awarded by the learned magistrate and in default of payment, simple imprisonment for two months is sufficient in the ends of Crl.R.P.No.1827/2009 4 justice. 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 the compensation as ordered by the learned magistrate, in the trial court. In case of default, she shall undergo simple imprisonment for two months. iii. Petitioner shall appear in the trial court on 12.9.2009 to receive the sentence. Execution of warrant if any against the petitioner will stand in abeyance till 12.9.2009. Communicate the order to the court concerned. Crl.M.A.No.5534 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks