IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 27TH OCTOBER 2011 / 5TH KARTHIKA 1933 Crl.Rev.Pet.No. 2557 of 2011() ------------------------------ CRA.823/2009 of II ADDL. SESSIONS COURT, TRIVANDRUM CC.127/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT-V, TRIVANDRUM .................... REVN. PETITIONERS/APPELLANT/ACCUSED ---------------------------------------------------------------- V.K.SARASAMMA, D/O.GOPALAN, FLAT NO.28, C.R.H.S.QUARTERS, NALANDA, KOWDIAR P.O., THIRUVANANTHAPURAM. BY ADVS. SRI.BASANT BALAJI SRI.T.P.RAMESH RESPONDENTS/RESPONDENT/COMPLAINANT ------------------------------------------------------------------- 1. A.RASHEED, ATHEN VEEDU, T.C.1284(1), PONGUMMOODU, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695013. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. R2 BY PUBLIC PROSECUTOR SRI. T.R. RAJESH THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: AMG S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P No.2557 OF 2011 ----------------------------------------- Dated this the 27th day of October 2011 ORDER Revision is by the accused who has been convicted of the offence under Section 138 of the Negotiable Instruments Act (for short, 'NI Act'), concurrently, by the two courts below. Sentence imposed against the accused, as modified by the learned Sessions Judge, is imprisonment till the rising of the court and to pay fine of `.2,10,000/- to the complainant with default term of simple imprisonment for three months. Fine amount, if any realised, is directed to be paid as compensation to the 1st respondent/ complainant. Feeling aggrieved, the accused has preferred this revision. 2. The learned counsel for the petitioner/accused assailed the conviction contending that both courts have not appreciated the defence raised by the accused disputing the execution of the cheque and denying any transaction with the complainant over such instrument. Contention raised by the accused that, on the date of the transaction alleged by the complainant, she attended her office has been proved by producing copy of the attendance register. But, still, both the courts negatived her plea of alibi solely on the basis of the testimonies of the complainant and the two Crl.R.P No.2557 OF 2011 2 witnesses. The courts below, both of them, have failed to take note that the execution of the instrument, which was disputed by the accused, has not been proved by reliable and convincing evidence, according to the counsel. Conviction entered against the accused is not supported by legal evidence and as such, it is liable to be interfered with, is the further submission of the counsel. 3. Going through the judgments rendered by the learned Magistrate and also the learned Sessions Judge, I am not impressed by the challenges canvassed by the counsel to assail the conviction rendered against the petitioner/accused, concurrently, by the two courts below. Admittedly, the cheque involved in the case arose from an account maintained by the accused in a bank. Signature in that instrument was subscribed by the accused is not a matter in dispute. She had set up a defence that the cheque was issued in blank form with signature alone in a transaction with PW3 for borrowing a sum of `.50,000/- from him. When that was the defence canvassed in trial with a plea of alibi to dispute the case of the complainant over the transaction alleged with him, over the instrument, it is seen that after acknowledging the notice issued on dishonour of the cheque by the complainant it was not responded with any reply. Though the accused had contended that the cheque Crl.R.P No.2557 OF 2011 3 was issued in blank form with signature alone as security for a transaction with PW3, she did not take any steps to show that the entries filled up as regards the name of the payee, the date etc. were by a different hand and not by her. Coupled with the above circumstances, it is further proved by the materials tendered in the case that the defence canvassed by the accused as to the transaction with PW3 was one without any merit. Even PW3, who was summoned and examined by the complainant, asserted before the court that the transaction relating to the cheque was between the complainant and the accused. The learned Magistrate, who recorded the testimonies of the complainant as PW1 and his witnesses as PW2 and PW3, who were examined to prove the transaction, found their testimonies reliable, convincing and trustworthy. The learned Sessions Judge, after reappreciating the evidence, found no infirmity, whatsoever, in the conclusion drawn by the learned Magistrate as regards the reliability and acceptability of the evidence of the complainant and his two witnesses, which indicated in unmistakable terms that the cheque involved was issued by the accused towards discharge of a legally enforcible debt or liability towards the complainant. What remained was only the plea of alibi canvassed by the accused to dispute the transaction Crl.R.P No.2557 OF 2011 4 with the complainant. The evidence tendered by the complainant and the two witnesses indicated that the transaction relating to the issue of cheque by advancing a sum covered thereunder as a loan to her took place at her residence in the early morning, as between 8:00 a.m and 9:00 a.m of the day. She attended her office, the same day, which was hardly situate 3 km. away from her residence, which was projected to dispute the transaction setting up the plea of alibi, was rightly and correctly found by both the courts as devoid of any merit to sustain her denial of the transaction. I do not find any infirmity in the conclusion concurrently formed by both the courts below that the defence canvassed by the accused is unworthy of any merit and that the complainant has established his case with unimpeachable legal evidence. 4. At this stage, the learned counsel for the revision petitioner/accused requested for three months time to pay the fine and, thus, avoid the default term of imprisonment. Cheque involved in the case is dated 09-04-2007 and the sum covered by that instrument is `.2,00,000/-. Though the amount awarded as fine is `.2,10,000/- having regard to the time lag after the issue of he cheque, the dishonour of which had given rise to the prosecution and ultimately the conviction of the accused, prima facie, there is no Crl.R.P No.2557 OF 2011 5 merit in the request made for further extension of time for payment of the fine. However, taking into account the submission made by the counsel, pointing out the extenuating circumstances available in favour of the accused, who is a lady, to seek for extension of time, I find, the period requested for payment can be granted. 5. Affirming the conviction and sentence, petitioner/accused is directed to appear before the Magistrate on 07-02-2012 to serve out the imprisonment till the rising of the court, and to report the payment of fine. The learned Magistrate is directed to keep in abeyance the execution of sentence till the date fixed as above for her appearance, to enable her to pay the fine within such period. In default of her appearance and nonpayment of the fine, the Magistrate shall execute the sentence taking appropriate steps in accordance with law. Revision is disposed of. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge