IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 10TH JANUARY 2008 / 20TH POUSHA 1929 Crl.Rev.Pet.No. 55 of 2008() ---------------------------- CRA.243/2007 of ADDL. SESSIONS COURT (ADHOC)-II, ALAPPUZHA CC.1046/2003 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHERTHALA .................... REVN. PETITIONER: APPELLANT/ACCUSED ----------------------------------- K.S.REMADEVI, SENIOR PERSONAL OFFICER, AGED 52 YEARS, KELTRON EQUIPMENT COMPLEX, KARAKULAM, THIRUVANANTHAPURAM. BY ADV. SMT.C.S.SHEEJA RESPONDENTS: RESPONDENT/COMPLAINANT ----------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. V.SATHEESAN, S/O.VASU, AGED PADYALACKAL VEEDU, THYCKAL P.O., CHERTHALA. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.R.P.No.55 of 2008 ------------------------------------- Dated this the 10th day of January, 2008 ORDER This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 138 of the N.I Act. The petitioner now faces a substantive sentence of S.I for a period of one month. There is a further direction to pay a total amount of Rs.1,53,000/- as compensation to the complainant and in default to undergo S.I for a period of five months. 2. The cheque is for an amount of Rs.1,50,000/-. It bears the date 16.09.03. The signature in the cheque is admitted. Handing over of the cheque is not disputed. The short contention that was raised is that the cheque was not issued for the due discharge of any legally enforcible debt/liability, but was issued only as security when the complainant offered himself as a surety/guarantor for the accused to avail a loan. 3. Notice of demand was returned unclaimed. The complainant observed the statutory time table scrupulously and filed the complaint. Cognizance was taken. Accused denied the offence. Thereupon the complainant examined himself as PW1 Crl.R.P.No.55 of 2008 2 and proved Exts.P1 to P5. The accused stuck to her defence that the cheque was not issued for the due discharge of any legally enforcible debt/liability, but was issued as security. The accused examined one witness as DW1. This witness stated and the complainant/PW1, of course, admitted that the complainant had stood as a guarantor for the accused in a loan transaction. 4. The courts below concurrently came to the conclusion that the complainant has succeeded in establishing all ingredients of the offence punishable under Section 138 of the N.I.Act. Accordingly they proceeded to pass the impugned concurrent judgments. 5. The petitioner/accused claims to be aggrieved by the impugned concurrent judgments. Called upon to explain the nature of challenge, which the petitioner wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner raises two contentions. 6. First of all it is contended that the cheque was not issued for the due discharge of any legally enforcible debt/liability as stated earlier. Signature in the cheque is admitted. Handing over of the cheque is admitted. The short question is whether the cheque was issued for the due discharge of any legally enforcible Crl.R.P.No.55 of 2008 3 debt/liability or only as security when the complainant offered to stand as a guarantor to the accused in a loan transaction. 7. Except the suggestion made to PW1 and the admission made by PW1 that he had offered himself as a guarantor to her in a loan transaction, there is absolutely nothing to show that the cheque was issued only as security and not for the due discharge of any legally enforcible debt/liability. The accused is employed as a Senior Personnel Officer of the KELTRON and it is idle to assume that such a person would issue cheques without responsibility in the manner in which she claims to have behaved in this case. Primarily we have the oral evidence of PW1 and such oral evidence is eminently supported by the ability of PW1 to produce Ext.P1 cheque which allegedly bears the signature of the petitioner. The presumption under Section 139 of the Negotiable Instruments Act does also stare at the petitioner. The burden to rebut the said presumption cannot be said to have been discharged by the mere statement of PW1 that there was a loan transaction in which he was a guarantor for the petitioner/accused and the version of DW1 which confirms such loan transaction. In these circumstances, I find no merit in the first contention raised against the impugned concurrent judgments. Crl.R.P.No.55 of 2008 4 8. The learned counsel for the petitioner then submits that the sentence imposed is excessive. The petitioner, a woman, may be saved of the trauma of substantive sentence of imprisonment. Leniency may be shown on that aspect, it is prayed. I find merit in the said prayer. I have already adverted to the principles governing imposition of sentence in a prosecution under Section 138 of the N.I Act in the decision reported in Anilkumar v. Shammi [2002(3) KLT 852]. I am satisfied that there are no compelling reasons which can persuade this Court to insist on imposition of any deterrent substantive sentence of imprisonment. Leniency can be shown on the question of sentence, but subject only to the compulsion of ensuring adequate and just compensation for the victim/complainant, who has been compelled to fight two rounds of legal battle by now and to wait from 2003 for the redressal of his grievances. He deserves to be compensated satisfactorily. The challenge can succeed only to the above extent. 9. In the nature of the relief which I propose to grant, it is not necessary to wait for issue and return of notice to the respondent. Crl.R.P.No.55 of 2008 5 10. In the result: a) This Crl.R.P is allowed in part; b) The impugned verdict of guilty and conviction of the petitioner under Section 138 of the N.I Act are upheld; c) But the sentence imposed is modified and reduced. In supersession of the sentence imposed on the petitioner by the courts below, he is sentenced to undergo imprisonment till rising of court. He is further directed to pay a totally amount of Rs.1,65,000/- (Rupees One lakh sixty five thousand only) as compensation under Section 357(3) Cr.P.C and in default to undergo S.I for a period of 5 months. If realised the entire amount shall be released to the complainant. 11. The petitioner shall have time till 29.02.08 to make the payment and avoid the default sentence. The modified sentence hereby imposed shall not be executed till 29.02.08. The petitioner shall appear and her sureties shall produce her before the learned Magistrate on or before 01.03.08 for execution of the modified sentence hereby imposed. (R.BASANT, JUDGE) rtr/-