IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 17TH OCTOBER 2008 / 25TH ASWINA 1930 Crl.Rev.Pet.No. 3246 of 2008() --------------------------------------------- CRA.NO.616/06 OF SEESIONS COURT, PALAKKAD STC.NO.1157 OF JUDICIAL MAGISTRATE OF FIRST CLASS,CHITTUR ........ PETITIONER:APPELLANT:ACCUSED: ------------------------------------------------------- THANKAMMA, AGED 57 YEARS, W/O(LATE) A.M.MUTHU @ KUPPAMUTHU VADAKKEPAVADIYIL HOUSE, KOLLENGODE AMSOM AND VILLAGE CHITTUR TALUK. BY ADV. SRI.V.M.KRISHNAKUMAR SMT. P.A.ANITHA RESPONDENTS:RESPONDENTS:COMPLAINANT & STATE: -------------------------------------------------------------------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. VARGHESE FRANCIS, AGED 53 YEARS THAYYIL HOUSE, ATTAYAMPATHY, MUTHALAMADA VILLAGE, CHITTUR TALUK. BY PUBLIC PROSECUTOR SRI. C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/10/2008 ALONG WITH CRL.R.P.NO.3247 OF 2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.3246 OF 2008 =========================== Dated this the 17th day of October,2008 ORDER Petitioner is the accused and second respondent the complainant in S.T.No.1157/2005 on the file of Judicial Magistrate of First Class, Chittur. Second respondent lodged the complaint contending that petitioner borrowed Rs.2,00,000/- and towards its repayment issued Ext.P1 to P5 cheques respectively for Rs.20,000/-, Rs.1,20,000/-, Rs.10,000/-,Rs.25,000/- and Rs.25,000/- dated 15.9.2004,20.10.2004,22.9.2004,5.11.2004 and 18.11.2004 and when cheques were presented for encashment, all the cheques were dishonoured for want of sufficient funds under Exts.P6 to P11 memos and second respondent sent Ext.P12 notice demanding the amount covered by the dishonoured cheques in the correct address which was refused to be received by the petitioner and under Ext.P13 it was returned unclaimed and she thereby committed CRRP3246/2008 2 the offence under section 138 of Negotiable Instruments Act. 2.Petitioner pleaded not guilty. Second respondent was examined as PW1 and Exts.P1 to P14 were marked. Petitioner was examined as DW1 and a witness was examined as DW2 and Ext.D1 the counter foil of the cheque was marked. Learned Magistrate on the evidence found the petitioner guilty. She was convicted and sentenced to simple imprisonment for one year and a fine of Rs.2,00,000/- and in default simple imprisonment for six months. On realisation of the fine amount Rs.1,95,000/- was directed to be paid to second respondent as compensation under section 357(1) of the Code of Criminal Procedure. Petitioner challenged the conviction and sentence before Sessions Court, Palakkad in Crl.A.616/2006. Learned Sessions Judge on reappreciation of evidence confirmed conviction but modified the sentence to simple imprisonment for three months confirming the sentence of fine and the direction to pay compensation out of the fine amount. Revision is filed challenging the conviction and sentence. CRRP3246/2008 3 3. Learned counsel appearing for petitioner was heard. 4. Learned counsel submitted that petitioner is not challenging the conviction and because of her financial conditions she cannot pay the amount immediately and she may be granted two months time to pay the fine. Learned counsel also submitted that petitioner may be permitted to pay the portion of the fine, which is directed to be paid to second respondent directly to second respondent and produce the receipt before the learned Magistrate. 5. Learned Magistrate and learned Sessions Judge on appreciation of evidence of PW1 and DW1 and 2 found that Ext.P1 to P5 cheques were issued by the petitioner drawn in her account maintained in State Bank of Travancore towards repayment of the amount due to second respondent. It was also found that cheques were dishonoured for want of sufficient funds and second respondent has complied with all the statutory formalities as provided under section 138 and 142 of Negotiable Instruments Act. Nothing was pointed out to show that any material evidence was omitted to be appreciated by CRRP3246/2008 4 the courts below. As the evidence was properly appreciated and it is established that Ext.P1 cheque was issued towards the repayment of the amount and was dishonoured for want of sufficient funds and all the statutory formalities as provided under section 138 and 142 of N.I.Act were complied with, conviction of the petitioner for the offence under section 138 is perfectly legal. 6. So long as the sentence is not to be modified or varied as against the second respondent, it is not necessary to issue notice to second respondent. Though learned Magistrate sentenced the petitioner to simple imprisonment for one year, learned Sessions Judge reduced the sentence to simple imprisonment for three months in addition to a fine of Rs.2,00,000/-. Considering the entire facts and circumstances, interest of justice will be met, if the sentence is reduced to imprisonment till rising of the court and a fine of Rs.2,00,000/- and in default simple imprisonment for three months. Criminal Revision Petition is allowed in part. Conviction of the petitioner for the offence under CRRP3246/2008 5 section 138 of N.I.Act is confirmed. Sentence is modified to imprisonment till rising of the court and a fine of Rs.2,00,000/- to be paid within two months from today and in default simple imprisonment for three months. Out of fine Rs.1,95,000/- is to be paid to second respondent as compensation under section 357(1) of Code of Criminal Procedure. Petitioner is permitted to pay that portion of the fine directing to second respondent and produce the receipt before learned Magistrate and deposit the balance amount in court. It is made clear that it is for the petitioner to establish that the receipt so produced was issued by the second respondent. Petitioner is directed to appear before learned Magistrate on 24.12.2008. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006