IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 23RD FEBRUARY 2011 / 4TH PHALGUNA 1932 Crl.Rev.Pet.No. 3489 of 2005() ------------------------------ CRA.111/2004 of ADDL.SESSIONS COURT (FAST TRACK III), TRIVANDRUM ST.28/2002 of, CHIEF JUDICIAL MAGISTRATE, TRIVANDRUM .................... REVN. PETITIONER/APPELLANT/ACCUSED -------------------------------------- SARALA, D/O.CHELLAMMA, T.C.NO.36/1267, PERUMTHANNI, PALKULANGARA, THIRUVANANTHAPURAM. BY ADV. SRI.SUMAN CHAKRAVARTHY RESPONDENTS/COMPLAINANT AND STATE ------------------------------------ 1. L.MARKOSE, M.N.NIVAS, LISSY ROAD, KOCHUTHOPPE, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.BLAZE K.JOSE FOR R1 PUBLIC PROSECUTOR SMT.P.N.SUMANGALA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.C.HARI RANI, J * * * * * * * * * * * * Crl.R.P.No.3489 of 2005 ---------------------------------------- Dated this the 23rd day of February 2011 O R D E R The revision petitioner is the accused who is challenging the concurrent finding against her for the offence under section 138 of the Negotiable Instruments Act. The courts below found the accused guilty and convicted her thereunder. The trial court, after considering the evidence, convicted the accused for the said offence and sentenced her to undergo simple imprisonment for three months and to pay fine of Rs.80,000/- and in default of payment of fine to undergo simple imprisonment for one month. It was also directed that if the fine amount is paid by the accused, or realised from her, an amount of Rs.75,000/- shall be paid to the complainant as compensation under Section 357(1) (b) Cr.P.C. The accused preferred appeal before the first appellate court. Accordingly, the appellate court, as per judgment dated 10/10/2005, confirmed the finding of guilty and conviction of the accused for the offence under section 138 of the Negotiable Instruments Act. The sentence was modified to that of imprisonment till the rising of court and directed the Crl.R.P.No.3489/05 2 accused to pay compensation of Rs.75,000/- to the complainant under Section 357(3) Cr.P.C and in default to undergo simple imprisonment for three months. This has been challenged by the revision petitioner/accused in this revision. 2. Heard the learned counsel for the revision petitioner and the learned counsel for the 1st respondent. Heard the learned Public Prosecutor also. 3. It is argued by the learned counsel for the revision petitioner that no opportunity was given to the accused by the trial court to adduce evidence and prayed that the case may be remanded to give a chance to the accused to adduce defence evidence. Though such a ground has not been raised in the revision petition, I have perused the judgment of the appellate court on the submission made by the learned counsel for the revision petitioner that such a ground has been taken in the appeal also. In paragraph 8 of the appellate court judgment, that question of fact has been elaborately discussed and the appellate court found that sufficient opportunities were given to the accused for adducing evidence; but she did not take any steps to adduce evidence. I find no ground to interfere with the finding of fact entered into by the appellate court. Crl.R.P.No.3489/05 3 4. It is then argued by the learned counsel for the revision petitioner that the case put up by the defence before the trial court during cross-examination of PW1 and during 313 statement was that the son of the accused had borrowed Rs.10,000/- from the complainant for which Rs.43,000/- was repaid in the presence of the witnesses and the disputed cheque was not issued in discharge of any legally enforcible debt. According to the learned counsel for the 1st respondent, Ext.P1 cheque was issued by the accused which was drawn in her account towards the discharge of a legally enforcible debt due to the complainant and when the same was presented for collection before the bank it was dishonoured due to insufficiency of funds. Even after receipt of lawyer notice by the accused the amount covered under the cheque has not been paid and hence the accused has committed the offence punishable under section 138 of the Negotiable Instruments Act. After considering the evidence adduced from the side of the complainant, the trial court as well as the appellate court have found the accused guilty for the offence under section 138 of the Negotiable Instruments Act and convicted her and also imposed sentence thereunder. Crl.R.P.No.3489/05 4 5. The accused had received copy of the lawyer notice which is evident from Ext.P5 acknowledgment card is not disputed. No reply has been sent by the accused disputing the allegations therein and the accused has no such case also. The accused herself had not entered into the witness box to establish her case that the disputed cheque was not handed over by her to the complainant as alleged in the complaint and the same was taken by force by the complainant as put forward by the defence during cross-examination of PW1. Sufficient opportunities were given by the trial court to adduce evidence on the part of the defence which was not availed of by the accused is already found against the revision petitioner herein by the appellate court as above mentioned. 6. The disputed cheque has been produced by the complainant before the court below marked as Ext.P1. Some difference with regard to her signature in Ext.P1 and in the acknowledgment card Ext.P5 has been found by the trial court as well as by the appellate court. On comparing the signature of the accused put by her in the 313 statement, vakalath and in Ext.P1, the courts below found that there was some difference in those signatures and came to the conclusion that the accused Crl.R.P.No.3489/05 5 was not in the habit of putting the signatures uniformly and that she is an illiterate person. So, there is not much significance with regard to the difference in the signature of the accused in Ext.P1 and in Ext.P5. The definite case of the defence is that Ext.P1 cheque was taken by the complainant with force from her table due to some difference with regard to interest of the amount borrowed by her son from the complainant even after repayment of that amount. That case put forward by the defence has not been established by valid and satisfactory evidence. Under section 139 of the Negotiable Instruments Act, there is a legal presumption that the cheque was issued for discharging an antecedent liability and that presumption can be rebutted by the drawyer of the cheque. No valid and acceptable evidence has been adduced by the accused to rebut that presumption available to the complainant under section 139 of the Negotiable Instruments Act. 7. The jurisdiction of revision is essentially the power and duty of superintendence and correction. The crucial question is whether the findings of fact rendered are so grossly erroneous or perverse as to warrant revisional interference. After considering the facts and evidence as considered by the Crl.R.P.No.3489/05 6 courts below, I find there is no valid ground to interfere with the findings of the courts below and the same is confirmed. Sufficient leniency has already been shown by the appellate court and no interference is required in this revision petition. 7. In the result, this revision petition is dismissed. Considering the facts of this case, I am inclined to grant three months time to the revision petitioner either to deposit or to pay the amount of total compensation of Rs.75,000/- (Rupees seventy five thousand only) less the amount, if any, already deposited as directed by this Court while suspending the sentence. The petitioner shall have time till 23/05/2011 to pay/deposit the amount of compensation and thus avoid the default sentence. If realised, the entire amount shall be released to the complainant on filing proper application. The petitioner shall appear and her sureties shall produce her before the learned Magistrate on 24/05/2011 for execution of the sentence. (M.C.HARI RANI, JUDGE) jsr // True Copy// PA to Judge Crl.R.P.No.3489/05 7 Crl.R.P.No.3489/05 8 Crl.R.P.No.3489/05 9 M.C.HARI RANI, J Crl.R.P.No.504 of 2001 Crl.R.P.No.3489/05 10 ORDER 17th DAY OF JUNE 2001 Crl.R.P.No.3489/05 11