IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 15TH JULY 2011 / 24TH ASHADHA 1933 Crl.Rev.Pet.No. 1723 of 2011() ------------------------------------------- CRA.161/2008 of ADDL.DISTRICT AND SESSIONS COURT(ADHOC) FAST TRACK-II, PATHANAMTHITTA CC.937/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ADOOR .................... REVN. PETITIONER(S): PETITIONER/APPELLANT/ACCUSED -------------------------------------------------------------------------------------- AJITHA, 'ASHA DEEPAM', T.D.2364, CHITRA NAGAR, PATTOM, THIRUVANANTHAPURAM. BY ADV. SRI.D.KISHORE SMT.MINI GOPINATH RESPONDENT(S): COMPLAINANT & STATE --------------------------------------------------------------- 1. SHYAMALAMMA, MADHAVACHERIL, KONNAMON KARA MURI, ADOOR-689 711. 2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. R1 BY ADV. SRI.MANSOOR.B.H. R2 BY PUBLIC PROSECUTOR SRI.SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P No.1723 OF 2011 -------------------------------- Dated this the 15th day of July 2011 ORDER Accused in C.C No.937/2004 on the file of the Judicial First Class Magistrate Court, Adoor is the revision petitioner. She was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act (for short, NI Act), on a complaint filed by the 1st respondent. Negativing her plea of not guilty she was convicted for the offence. She was sentenced to undergo simple imprisonment for a one year and to pay Rs.95,000/-, the cheque amount, as compensation to the complainant, with default term of simple imprisonment for one month, by the learned Magistrate. Appeal preferred by the accused against the conviction and sentence as aforesaid was turned down by the learned Sessions Judge, but with a modification of the sentence, reducing the substantive term of imprisonment from one year to six months. Feeling aggrieved, the accused has preferred this revision impeaching the conviction concurrently entered by the two inferior courts. 2. Notice given, the 1st respondent has entered appearance. 3. I heard the counsel on both sides. The one and only challenge pressed into service by the learned counsel to assail the conviction is that the denial of execution of the cheque and dispute raised over the Crl.R.P No.1723/2011 - 2 - transaction relating to the cheque, canvassed as a defence to resist the prosecution, was not properly appreciated by the court below, and without any legal evidence proving the execution of the cheque by the accused to support the case pleaded by the complainant, both the courts have held the accused guilty of the offence. 4. Per contra, the learned counsel for the 1st respondent/complainant, pointing out the limited exercise of jurisdiction in revision, urged that the finding on facts made by the inferior courts is not liable to be interfered with unless it is shown to be perverse. 5. Perusing the judgments rendered by the two courts below, it is seen, other than taking up a denial of execution of the cheque, no material whatsoever was placed by the accused to show that the defence so pleaded has any merit. The evidence in the case consisted of the oral testimony of complainant as PW1 and the materials tendered by her, Exts.P1 to P5. Even the statutory notice issued by the complainant on dishonour of the cheque, intimating the same and demanding the sum covered by the cheque, after acknowledgment, was not responded to. The learned Magistrate, who had the opportunity to watch the demeanour and deportment of the complainant examined as PW1 found her testimony reliable, trustworthy and credible. Nothing was brought to my notice to take a different view from the view taken Crl.R.P No.1723/2011 - 3 - by the learned Magistrate, which, after reappraisal was approved by the learned Sessions Judge also. When such be the case, I find, the challenge now raised to impeach the concurrent finding of fact rendered by the two courts, canvassed by the counsel, deserve to be taken note of only for its rejection. Conviction of the accused is seen fully supported by legal evidence. 6. So far as the sentence imposed against the petitioner, which include a substantive period of simple imprisonment for six months, I find, having regard to the nature of the offence involved and also that the accused is a lady, modification is called for. Prosecution for dishonour of cheque by incorporating Section 138 and 142 of the NI Act is primarily intended to give more credibility and trustworthiness to commercial transactions by use of negotiable instruments. Unless exceptional circumstances are shown that the offender who is prosecuted for such offence has to be mulcted with a term of imprisonment the ends of justice would be served if punishment is limited to imprisonment for one day with direction to pay the compensation equivalent to the cheque amount. Sentence is therefore modified, reducing the substantive term of imprisonment to one day, till rising of the court, retaining the sum of compensation fixed by the courts below with the default term stipulated thereunder. Crl.R.P No.1723/2011 - 4 - 7. The petitioner shall appear before the concerned Magistrate on 16-08-2011 to serve out the sentence of simple imprisonment for one day, till rising of the court, and also to report payment of the compensation on or before that date. The Magistrate shall keep in abeyance the execution of sentence till the aforesaid date to enable the petitioner to pay the compensation and thus avoid the default term. In default of appearance by the petitioner as aforesaid and nonpayment of the compensation, the Magistrate shall take appropriate steps to execute the sentence. Revision is disposed as above. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge