IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 3RD DECEMBER 2008 / 12TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 861 of 2001 ----------------------------- ( CRL. APPEAL NO.147/1995 of I ADDL. SESSIONS COURT, TRIVANDRUM) ( ST.347/1993 of CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM ) REVISION PETITIONER/APPELLANT/ACCUSED: ------------------------------------------------ LILLYKUTTY ALPHONSE, BEENA BHAVAN, M.P. STORE, NEAR SEBASTIAN CHURCH, VETTUKADU, BEACH P.O., THIRUVANANTHAPURAM. BY ADV. SRI.T.M. ABDUL LATHEEF RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE: ------------------------------------------------------------------- 1. NOLANJO ROZARIO, S/O. WILLIAM ROZARIO, THUNDUVILAKOM HOUSE, T.C.NO. 33/350, KOCHUVELI, THIRUVANANTHAPURAM 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR , HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.M.S.ANILKUMAR AND BY ADV. SMT.D.JAMEELA DEVI R2 BY PUBLIC PROSECUTOR ADV. SMT. M.K. PUSHPALATHA. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL.R.P. No. 861 of 2001 = = = = = = = = = = = = = == = = = = = = = = = = = Dated this the 3rd day of December, 2008 O R D E R -------------- Heard counsel for revision petitioner and Public Prosecutor. 2. Revision petitioner stands convicted for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”) and sentenced to undergo simple imprisonment for 3 three months and payment of fine of Rs.25,000/-. Her appeal was dismissed. Hence this revision. 3. Counsel for revision petitioner contended that due execution of the cheque is not proved and that at any rate, presumption under Section 139 of the Act has been rebutted. Case of first respondent is that revision petitioner borrowed Rs.75,000/- on 3.6.1992 from him and issued Exhibit P1, cheque dated 4.2.1993. That cheque was dishonoured for insufficiency of funds as proved by Exhibits P2, P5 and the evidence of P.W.2. First respondent gave evidence as P.W.1 and testified to his case. He asserted that revision petitioner borrowed the amount on 3.6.1992 and for discharge of that debt she issued the cheque. Version of revision petitioner is that she had no transaction with the first respondent and CRL. R.P. No.861 of 2001 -: 2 :- instead, sister of first respondent had agreed to purchase an item of land belonging to her for a total consideration of Rs.4.5 lakhs, paid Rs.75,000/- as advance by way of two cheques and at that time she gave a signed blank cheque (Exhibit P1, as security). That transaction did not go through and thereon she returned the sum of Rs.75,000/-. But the cheque given as security was not returned. Sister of first respondent then claimed that the cheque (Exhibit P1) is with her brother, she would get it soon and return. But she did not do so. Revision petitioner examined D.Ws.1 and 2 and proved Exhibits D1 to D4. D.Ws.1 and 2, Managers of State Bank of Travancore, Sasthamangalam and Syndicate Bank, Kochuveli were examined to prove that Exhibits D2 and D4, cheques allegedly issued by the sister of first respondent in favour of revision petitioner were encashed by the latter. Courts below found that the transaction covered by Exhibits D2 and D4 has nothing to do with the transaction pleaded by the first respondent and rejected the contention of revision petitioner. According to counsel for the revision petitioner, view taken by the courts below is not correct. 4. Assuming that revision petitioner had any such agreement for sale of land with the sister of first respondent and towards part payment of consideration sister paid Rs.75,000/- as per Exhibits D2 and D4 to the revision petitioner, it is not shown that such transaction CRL. R.P. No.861 of 2001 -: 3 :- is in way connected with transaction pleaded by the first respondent. There is no acceptable evidence to show that Exhibit P1 was given to the sister of first respondent as security as claimed by revision petitioner. It is true that revision petitioner gave evidence as D.W.3. But she also had to concede that in spite of being served with notice of dishonour and demand for payment on behalf of first respondent, she did not reply. True, revision petitioner (D.W.3) has an excuse for that. But that was not accepted by the courts below. P.W.3, brother of first respondent has also given evidence regarding the transaction. Courts below considered the oral and documentary evidence let in by both sides and found that the revision petitioner issued Exhibit P1, cheque in discharge of the debt in favour of first respondent. There is no justifiable reason to interfere with the conviction. 5. So far as sentence awarded to the revision petitioner is concerned, considering the nature of the offence and object of legislation, simple imprisonment till rising of court will be sufficient in the ends of justice. At the same time first respondent has to be compensated. Resultantly, revision petition is allowed in part in the following lines: (i) The substantive sentence awarded to the revision petitioner is modified as simple imprisonment till rising of CRL. R.P. No.861 of 2001 -: 4 :- the court. (ii) Revision petitioner is directed to deposit in the trial court for payment to the first respondent Rs.75,000/- (Rupees Seventy five thousand only) as compensation within three months from this day failing which she shall undergo simple imprisonment for two months. (iii) It will be sufficient compliance with direction contained in clause (ii) above if revision petitioner paid the compensation to the first respondent through counsel in the trial court and first respondent files a statement through counsel in the trial court within the said period of three months acknowledging receipt of amount. (iv) Revision petitioner shall surrender in the trial court on 10.3.2009 to suffer the sentence. Bail bond shall stand cancelled. Criminal Miscellaneous Petition No.3983 of 2001 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv CRL. R.P. No.861 of 2001 -: 5 :- THOMAS P.JOSEPH, J. =================== CRL.R.P. NO.861 OF 2001 =================== O R D E R 3RD DECEMBER, 2009