IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 22ND OCTOBER 2010 / 30TH ASWINA 1932 Crl.Rev.Pet.No. 1675 of 2005() (CC.NO.1105/2000 OF JFCM II, ERNAKULM CR.A. NO.952/2004 OF V ADDL. SESSIONS COURT, ERNAKULAM) REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- C.G. LILLYMOL, W/O. ABRAHAM, MATHANGAMUKALEL HOUSE, KOTHANALLOOR P.O.,KOTTAYAM. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) RESPONDENT(S): RESPONDENTS/COMPLAINANT: --------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. M/S. KERALA STATE WOMEN'S DEVELOPMENT CORPORATION LTD., REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL OFFICE, DESABHIMANI JUNCTION, KALOOR, KOCHI-17. ADV. SRI.V.E.ABDUL GAFOOR FOR R2 SRI.N.MANOJ KUMAR, SR.G.P., KSWDC LTD. FOR R2 PUBLIC PROSECUTOR SRI.SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.A.NO.11058/2005 IN CRL.R.P.NO.1675/2005 DISMISSED 22-10-2010 Sd/-, P.Q.BARKATH ALI, JUDGE P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.1675 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of October, 2010 ORDER Revision petitioner is the accused in C.C.No.1105/2000 on the file of Judicial First Class Magistrate Court II, Ernakulam and appellant in Crl.Appeal No.952/2004 of Vth Addl.Sessions Court,Ernakulam. Second respondent/complainant is M/s.Kerala State Women's Development Corporation represented by its Recovery Assistant, PW1. The accused was convicted under Section 138 of Negotiable Instruments Act and was sentenced to undergo simple imprisonment for three months by the learned Magistrate by judgment dated September 10, 2004. The accused was also directed to pay a compensation of Rs. 73,353/- to the complainant. On appeal by the accused, the lower appellate court confirmed his conviction, but modified the sentence to imprisonment till the rising of court. The order for payment of compensation was maintained. The accused has now come up in revision challenging his conviction and sentence. Crl.R.P.No.1675/2005 2 2. The case of the second respondent/complainant Corporation as testified by PW1, the Recovery Assistant, before the trial court and as detailed in the complaint in brief is this : For Rs.73,351/- due to the complainant Corporation, the accused issued the cheque Ext.P2 dated January 11, 2000 drawn on the Kuruppanthara branch of Manjoor Service Co-operative Bank which when presented for collection was returned dishounoured for want of sufficiency of funds in the account of the accused in the bank and that inspite of the notice Ext.P5 dated February 1, 2000, the accused did not repay the amount. Therefore, the Corporation filed the complaint before the trial court under Section 138 of Negotiable Instruments Act through its Recovery Assistant. 3. On receipt of the complaint, the learned Magistrate recorded the sworn statement of PW1 and took cognizance of the offence. The accused on appearance before the trial court pleaded not guilty to a charge under Section 138 of Negotiable Instruments Act. PW 1 was examined and Exts.P1 to P3 were marked on the side of the complainant. On the side of the accused, DW1 was examined and Crl.R.P.No.1675/2005 3 Exts.D1 and D2 were marked. 4. The learned Magistrate on an appreciation of evidence found the revision petitioner guilty of the offence punishable under Section 138 of Negotiable Instruments Act , convicted him thereunder and sentenced him as aforesaid. On appeal by the accused, the lower appellate court confirmed his conviction, but modified the sentence as aforesaid. The accused has now come up in revision challenging his conviction and sentence. 5. Heard the counsel for the revision petitioner and the counsel for the revision first respondent. 6. The following points arise for consideration : 1) Whether the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act rendered by the trial court which is confirmed in appeal can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? Point No.1 7. PW1, the Recovery Assistant of the complainant Corporation testified in a convincing manner before the trial court regarding the transaction. Nothing was brought out during his cross Crl.R.P.No.1675/2005 4 examination to disbelieve his evidence. Further his evidence is supported by Exts.P1 to P8. 8. The case of the accused as suggested during cross examination of PW1 and as stated by DW1, her husband was that she availed a loan of Rs. 54,625/- from the complainant Corporation, that at that time 20 signed blank cheques were issued to them and misusing one of those cheques, complainant has filed this false case against her. In an attempt to prove the case of the accused, DW1, her husband was examined before the trial court. But his evidence does not in any way help the accused to prove her case of issuance of blank signed cheques. Ext.D1 is the proceedings of the complainant Corporation showing that Rs. 84,625/- was sanctioned as loan to the accused and the first instalment of Rs. 15712/- was disbursed to her. Ext.D2 is the proceedings dated March 26, 1998 showing that the second instalment of Rs. 41,788/- was disbursed to her. Exts.D1 and D2 do not show that any blank signed cheques were issued by the accused to the complainant. Therefore, in my view, both the courts below are justified in rejecting the above case of the accused. Further, as the Crl.R.P.No.1675/2005 5 execution of the cheque Ext.P1 is admitted by the accused, presumption as envisaged under Section 118 and 139 of Negotiable Instruments Act is available to the complainant. No reliable evidence was adduced by the accused to rebut the above presumption. 9. For all these reasons, I am of the view that the trial court as well as the lower appellate court are perfectly justified in accepting the evidence of PW1 and finding that the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. Therefore I confirm the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act. Point No.2 10. As regards the sentence, the revision petitioner was sentenced to undergo simple imprisonment for three months and to pay a compensation of Rs. 73,353/- by the learned Magistrate. On appeal by the accused, the lower appellate modified the sentence to imprisonment till the rising of court. The order for payment of compensation was maintained. I find no special reason to reduce the sentence. Crl.R.P.No.1675/2005 6 In the result, revision petition is dismissed. Conviction of the revision petitioner under Section 138 of Negotiable Instruments Act and the sentence imposed by the learned Magistrate which is modified by the lower appellate court are confirmed. Two month's time is granted for payment of compensation. The amount, if any, deposited by the revision petitioner before the trial court shall be adjusted towards the compensation ordered to be paid. The revision petitioner shall surrender before the trial court on or before 15/11/2010 to suffer the sentence. Her bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.1675/2005 7