IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 8TH SEPTEMBER 2010 / 17TH BHADRA 1932 Crl.Rev.Pet.No. 2513 of 2010() -------------------------------------------- CRA.598/2008 of ADDL. SESSIONS COURT (ADHOC)-II, ALAPPUZHA CC.12/2006 of CHIEF JUDICIAL MAGISTRATE, ALAPPUZHA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------------------------------------------------------- KUNJUMOLE DEVASIA, W/O.DEVASIA, RESIDING AT PADINJAREPARAMBU, KALARKODE, ALAPPUZHA. (ST.THOMAS MODERN RICE MILL, PUNNAPRA). BY ADV. SRI.SUNIL J.CHAKKALACKAL RESPONDENT(S): RESPONDENTS/COMPLAINANT/NOT PARTY -------------------------------------------------------------------------------------------- 1. DAYANANDAN, S/O.BHASKARAN, RESIDING AT ANAND BHAVAN, KALARKODE, ALAPPUZHA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.B.JAYASURYA. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: kl. V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2513 of 2010 ------------------------------- Dated this the 8th day of September, 2010. O R D E R The accused in a prosecution for an offence u/s.138 of Negotiable Instruments Act is the revision petitioner, as she is aggrieved by the order of conviction and sentence imposed by the courts below. 2. The case of the complainant is that the accused/revision petitioner for the purpose of her business, borrowed a sum of Rs.5,50,000/- from the complainant and towards the discharge of the said liability, the accused issued cheque dated 20.7.2005, which when presented for encashment dishonoured, as there was no sufficient fund in the account maintained by the accused and the cheque amount was not repaid inspite of a formal demand notice and thus the revision petitioner has committed the offence punishable u/s.138 of Negotiable Instruments Act. With the said allegation, the complainant approached the Chief Judl. Magistrate Court-Alappuzha, by filing a formal complaint, upon Crl. R.P.No.2513 of 2010 2 which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.12/06. During the trial of the case, the complainant himself was mounted to the box and gave evidence as PW1 and Exts.P1 to P7 were marked, from the side of the complainant. From the side of the defence, Dws.1 to 5 were examined and Exts.D1 and D2 were also produced and marked. On the basis of the available materials and evidence on record, the trial court has found that the cheque in question was issued by the revision petitioner/accused for the purpose of discharging her debt due to the complainant. Thus accordingly the court found that, the complainant has established the case against the accused/revision petitioner and consequently found that the accused is guilty and thus convicted her u/s.138 of Negotiable Instruments Act. On such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment till the rising of the court and to pay a fine of Rs.5,50,000/- and the default sentence was fixed as 3 months simple imprisonment. It is also ordered that on realisation of the fine amount, the same Crl. R.P.No.2513 of 2010 3 shall be given to the complainant as compensation u/s.357(1)(b) of Cr.P.C. 3. Though an appeal was filed, at the instance of the revision petitioner/accused, by judgment dated 20.7.2010 in Crl.A.598/08, the Court of Addl. Sessions Judge (Fast Track-II), Alleppey, dismissed the appeal, confirming the conviction and sentence imposed against the revision petitioner. It is the above conviction and sentence challenged in this revision petition. 4. I have heard the learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. 5. Reiterating the stand taken by the accused/revision petitioner during the trial and appeal, submitted that the complainant has not established the transaction and also the execution and issuance of the cheque. But no case is made out to interfere with the concurrent findings of the trial court as well as the lower appellate court. 6. The learned counsel for the revision petitioner submitted Crl. R.P.No.2513 of 2010 4 that, the court below has miserably failed to found that the cheque was not supported by any consideration. It is also the contention of the learned counsel that the complainant has miserably failed to prove the execution of the cheque in question and he further contented that the trial court as well as the lower appellate court also failed to find out whether any legally enforceable debt was due to the complainant. I am unable to sustain the above contentions of the learned counsel. When PW1 was examined, he had deposed in terms of his claim and allegation contained in the complaint. According to him he had sufficient source to pay money covered by Ext.P1 cheque. He is having business like an agent in selling tourist boat. He had also produced Ext.P5 pass book and Ext.P6 statement of account to prove the transaction and his capacity to pay the amount. The trial court as well as the lower appellate court after considering the evidence and materials produced by the complainant, has held that the complainant has established the case. The revision petitioner who is the accused contented that, she did not execute Crl. R.P.No.2513 of 2010 5 the cheque and she never issued the cheque to the complainant. According to her, the cheque in question was given to the complainant by the husband of the revision petitioner, when the husband availed a loan of Rs.50,000/- from the complainant. In order to substantiate the above version of the accused, though the accused did not mounted to the box, she examined DW1, who is none other than her husband. According to DW1, when he availed the said amount from the complainant, he had furnished the cheque as a security and also gave two blank signed stamp papers of the revision petitioner. DW1 as well as DW2 submitted that, the amount availed by the husband of the revision petitioner was subsequently paid back to the complainant and as such no amount was due even from the husband of the revision petitioner to the complainant. The trial court as well as the lower appellate court considered the above contention. In para 15 of the trial court judgment, the learned Magistrate has categorically held that, 'the evidence adduced by Dws.1 to 5 and Exts.D1 and D2 do not inspire confidence in the Crl. R.P.No.2513 of 2010 6 mind of the court and there is no explanation as to how Exts.D1 and D2 are relevant in this case'. According to the learned Magistrate, in the deposition given by DW1 it has stated that, he had borrowed an amount of Rs.50,000/- in 2001 and gave two blank signed cheque, there is no explanation as to why those cheque leaves and blank signed papers did not received back, when the debt was cleared. Absolutely there is no evidence as to how Ext.P1 cheque reached in the hands of the complainant. Regarding the execution of Ext.P1 cheque and as to how the same reached in the hands of the complainant, the defence has no consistent case or any evidence to explain the defence version. The learned Chief Judicial Magistrate after considering the entire materials and evidence concluded that, the complainant has adduced satisfactory evidence in support of his case. After reappreciating the evidence on the basis of the rival contentions made by the parties, the lower appellate court has found that the complainant has established his case and he is entitled to get the benefit of S.139 of NI Act but the defence has Crl. R.P.No.2513 of 2010 7 miserably failed to rebut the presumptions. 7. In the light of the facts and circumstances involved in the case and the materials and evidence referred above and the findings and the discussions entered into by the trial court as well as the lower appellate court, I find no reason to interfere with order of conviction concurrently recorded by the trial court as well as the lower appellate court. 8. Regarding the sentence, the learned Chief Judicial Magistrate, after having considered the entire facts and circumstances involved in the case and especially considering the fact that the accused is a lady at the age of 46 years, took a lenient view that the imprisonment can be lessened but at the same time, the complainant should be compensated. Accordingly, the accused is sentenced to undergo simple imprisonment till the rising of the court and also directed to pay a fine of Rs.5,50,000/-, which on realisation, ordered to pay to the complainant as compensation u/s.357(1)(b) of Cr.P.C. The appellate court acknowledging the lenient view adopted by the Crl. R.P.No.2513 of 2010 8 learned Magistrate, no interference was made with respect to the sentence also. 9. It is also relevant to note that, the appeal which was preferred by the revision petitioner was disposed of on 20.7.2010, with a direction directing the accused to appear before the trial court to serve the sentence. No appeal or revision is preferred so far by the complainant on the ground of inadequacy of sentence. Therefore, I am of the view that this revision petition is lack of any merit and accordingly the same is dismissed and the revision petitioner is directed to appear before the trial court on 8.10.2010 to receive the sentence and to pay the fine amount. In the result, there is no merit in the revision petition and accordingly the same is dismissed. V.K.MOHANAN, Judge. ami/