IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 28TH OCTOBER 2008 / 6TH KARTHIKA 1930 Crl.Rev.Pet.No. 3319 of 2008(E) ------------------------------- CRA.1089/2005 of IV ADDL.SESSIONS COURT, ERNAKULAM CC.2217/2000 of JUDL.MAGISTRATE OF FIRST CLASS-II, ERNAKULAM .................... REVN. PETITIONER(S): PETITIONER/APPELLANT/ACCUSED ---------------------------------------------------------------- BEENA THOMAS, AGED 40 YEARS, W/O.M.U.THOMAS, SKYLINE VILLAGE, HOUSE NO.32, ERNAKULAM, KOCHI - 682 025. BY ADV. SRI.V.JOHN SEBASTIAN RALPH RESPONDENT(S): RESPONDENTS/COMPLAINANT ---------------------------------------------------- 1. P.B.GOPALAKRISHNAN, PUKALAKKATTU ETTUKATTIL HOUSE, PALARIVATTOM, ERNAKULAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M.KAMAPPU FOR R2 BY ADV. SRI.P.N.PURUSHOTHAMA KAIMAL FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.3319 OF 2008 =========================== Dated this the 28th day of October,2008 ORDER Petitioner is the accused and first respondent the complainant in C.C.2217/2000 on the file of Judicial First Class Magistrate-II, Ernakulam. First respondent lodged the complaint contending that he is engaged in the construction of residential and commercial buildings at Ernakulam and petitioner and her husband are also engaged in construction business and they requested first respondent for a loan of Rs.20,00,000/- in December,1999 and on that request, Rs.20,00,000/- was given and when the amount was demanded back petitioner issued Ext.P1 cheque drawn in the account maintained by petitioner at Edappally Branch of Union Bank. Ext.P1 cheque when presented for encashment was dishonoured for want of sufficient funds under Ext.P2. Inspite of Ext.P3 notice served on the petitioner under Ext.P4, she CRRP 3319/2008 2 did not pay the amount and thereby committed the offence under section 138 of Negotiable Instruments Act. Learned Magistrate took cognizance of the offence. Petitioner pleaded not guilty. First respondent was examined as PW1 and Exts.P1 to P4 were marked. Petitioner did not adduce any evidence. Learned Magistrate on the evidence found her guilty. She was convicted and sentenced to simple imprisonment for six months and a compensation of Rs.21,00,000/- and in default simple imprisonment for six months. Petitioner challenged the conviction and sentence before Sessions Court, Ernakulam in Crl.A.1089/2005. Learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for petitioner and first respondent were heard. 3. Though when questioned under section 313 of Code of Criminal Procedure, petitioner contended CRRP 3319/2008 3 that Ext.P1 cheque was issued as a blank cheque, evidence of PW1 establishes that petitioner and her husband borrowed Rs.20,00,000/- and when the amount was demanded back, Ext.P1 cheque was issued towards its repayment. There is absolutely no evidence to prove that Ext.P1 cheque was issued as a blank cheque. Inspite of the fact that petitioner received Ext.P3 notice, she did not sent a reply which is not the conduct of a person if a blank cheque was given and based on the blank cheque Rs.21,00,000/- was demanded. Learned Magistrate and learned Sessions Judge properly appreciated the evidence and rightly found that Ext.P1 cheque was issued towards repayment of the legally recoverable debt. 4. The fact that Ext.P1 cheque was dishonoured for want of sufficient funds is proved by Ext.P2 dishonour memo. That fact was not disputed earlier. It is also proved that first respondent complied with all statutory formalities by sending Ext.P3 notice within the statutory period and CRRP 3319/2008 4 lodging the complaint also within the period. Conviction of the petitioner for the offence under section 138 of Negotiable Instruments Act is therefore perfectly legal. 5. Then the only question is with regard to the sentence. Learned counsel appearing for petitioner submitted that petitioner is a lady and the amount was actually obtained by her husband and in such circumstance, leniency may be shown. Interest of justice will be met, if the sentence is reduced to imprisonment till rising of court and a fine of Rs.21,00,000/- and in default simple imprisonment for three months. The revision is therefore allowed in part. Conviction of the petitioner for the offence under section 138 of Negotiable Instruments Act is confirmed. Sentence is modified to imprisonment till rising of the court and a fine of Rs.21,00,000/- and in default simple imprisonment for three months. On realisation of the fine, it is to be paid to first respondent as compensation CRRP 3319/2008 5 under section 357(1) of the Code of Criminal Procedure. Petitioner is directed to appear before the Judicial First Class Magistrate-II, Ernakulam on 28.11.2008. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006