IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 2ND DECEMBER 2009 / 11TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 227 of 2001() ----------------------------- CC.604/1997 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI CRA.316 & 317 OF 2000 of SESSIONS COURT, ERNAKULAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------- MRS. SHEELA, W/O. SASIDHARAN, VELIPARAMBIL HOUSE, NEAR SREE NARAYANA METAL INDUSTRIES, PYARRY JUNCTION, KOCHI - 5. BY ADV. SRI.P.VIJAYA BHANU SMT.P.MAYA RESPONDENT(S): RESPONDENTS - COMPLAINANT & STATE --------------- 1. MRS. ASHA, ORULOTH PARAMBIL HOUSE, KOCHUPALLY ROAD, KOCHI-5. 2. STATE OF KERALA REP. BY PUBLIC PREOSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT. REKHA C. NAIR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P. 227 of 2001 ------------------------------------------------------ Dated: DECEMBER 2, 2009 ORDER The revision petitioner is the accused in C.C.No.604/1997 of the Judicial First Class Magistrate Court-II, Kochi, and the appellant in Crl.A.No.316/2000 of Sessions Court, Ernakulam. She was convicted under sec.138 of the Negotiable Instruments Act and sentenced to undergo rigorous imprisonment for five months and also to pay a fine of Rs.2500/-, in default to undergo simple imprisonment for a further period of one month. On appeal her conviction was confirmed, but the sentence was modified to the effect that she was sentenced to undergo imprisonment till the rising of court and to pay a compensation of Rs.50,000/-, in default to undergo simple imprisonment for a further period of one month. Out of the compensation amount, Rs.47,000/- was directed to be paid to the complainant. The accused has now come up in revision challenging her conviction and sentence. 2. The case of the 1st respondent/complainant as testified by her as PW.1 before the trial court and as detailed in the complaint is that for Rs.47,000/- due to the complainant, the accused issued a cheque Ext.P1 dated February 10, 1997 drawn on the Federal Bank, CRL. R.P. 227 of 2001 2 Aroor Branch, which when presented for collection was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of the notice Ext.P3 dated July 11, 1997, the accused did not repay the amount, which is an offence punishable under sec.138 of the Negotiable Instruments Act. 3. On receipt of the complaint the learned Magistrate recorded the sworn statement of the complainant/PW.1 and took cognizance of the offence. The accused on appearance before the trial court pleaded not guilty to the charge under sec.138 of the Negotiable Instruments Act. PWs.1 and 2 were examined and Exts.P1 to P7 were marked on the side of the complainant. When questioned under sec.313 Cr.P.C. the accused denied the entire transaction. No defence evidence was adduced. 4. The trial court on an appreciation of evidence found the revision petitioner guilty of the offence punishable under sec.138 of the Negotiable Instruments Act, convicted her thereunder and sentenced her as aforesaid. On appeal her conviction was confirmed but the sentence was modified as mentioned above. The accused has now up in revision challenging her conviction and sentence. 5. Heard the learned counsel for the revision petitioner. There was no appearance for the 1st respondent/complainant. CRL. R.P. 227 of 2001 3 6. The following points arise for consideration:- I. Whether the conviction of the revision petitioner under sec.138 of the Negotiable Instruments Act can be sustained? II. Whether the sentence imposed is excessive or unduly harsh? Point No.I 7. The complainant was examined as PW.1 before the trial court and Exts.P1 to P7 were marked on the side of the complainant. PW.1 testified in terms of the complaint. Nothing was brought out during cross-examination to discredit her evidence. Further her evidence is supported by Exts.P1 to P7 and PW.2, manager of the bank. 8. The case of the accused was that her husband borrowed some amount from the complainant for which a signed blank cheque of the accused was given to her which was misused by the complainant and created Ext.P1 cheque. No evidence was adduced to prove the same. Therefore both the courts below are justified in rejecting the above contention of the accused. That apart, the accused has admitted the execution of Ext.P1 cheque. Therefore the presumption under secs.118 and 139 of the Negotiable Instruments Act is available to the complainant. The accused has failed to rebut the above presumption effectively. For all these reasons accepting the evidence of PW.1, I find that both the courts below are justified in coming to the conclusion that the accused has committed an offence punishable CRL. R.P. 227 of 2001 4 under sec.138 of the Negotiable Instruments Act. Therefore the conviction of the accused under sec.138 of the Negotiable Instruments Act is confirmed. Point No.II 9. The trial court has sentenced the accused to undergo rigorous imprisonment for five months and to pay a fine of Rs.2500/-, in default to undergo simple imprisonment for a further period of one month. On appeal the sentence was modified to imprisonment till the rising of court and to pay a compensation of Rs.50,000/-, in default to undergo simple imprisonment for a further period of one month. Out of the compensation amount, Rs.47,000/- was directed to be paid to the complainant as compensation. I find no special reasons to reduce the sentence. In the result, confirming the conviction and sentence of the revision petitioner/accused, the revision petition is dismissed. Two months time is granted for payment of compensation. The revision petitioner shall appear before the trial court on or before 30.12.2009 to receive the sentence. P.Q. BARKATH ALI, JUDGE CRL.M.P.970/2001 Dismissed. 2.12.2009. P.Q. BARKATH ALI, JUDGE mt/-