IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 18TH AUGUST 2011 / 27TH SRAVANA 1933 Crl.Rev.Pet.No. 668 of 2005() ----------------------------- CC.138/2002 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM CRA.163/2003 of SESSIONS COURT, KOTTAYAM .................... REVN. PETITIONER: APPELANTS/ACCUSED. --------------------------------------- UDAYA G.NATH, W/O.GOPAKUMAR.C.T. THACHANNAYIL HOUSE, THEKKENADA VAIKOM. BY ADV. SRI.SURIN GEORGE IPE RESPONDENTS/RESPONDENTS/ COMPLAINANT AND STATE. ------------------------------------------------------------------ 1. VAZHAKKALA AGENCIES, T.B.ROAD, KOTTAYAM, 1, REP. BY P.A.HOLDER, SABU T.KORULLA, RESIDING AT PAYYAPPADI, KOTTAYAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.SUNIL CYRIAC FOR R1 PUBLIC PROSECUTOR SRI. VENUGOPAL M.R. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S. GOPINATHAN, JJ. = = = = = = = = = = = = = = = = = CRL.R.P. NO. 668 OF 2005 = = = = = = = = = = = = DATED THIS, THE 18TH DAY OF AUGUST, 2011. O R D E R Revision petitioner is the accused in C.C. 138 of 2002 on the file of the Judicial Magistrate of the First Class-II (Mobile), Kottayam. She was prosecuted by the 1st respondent alleging offence under Section 138 of the Negotiable Instruments Act. The revision petitioner pleaded not guilty. Hence she was sent for trial. On the side of the first respondent PW.1 was examined and Exts.P1 to P11 were marked. After closing the evidence, the revision petitioner was questioned under Section 313(1)(b) of the Code of Criminal Procedure. She took a plea of discharge stating that Exts.P1 and P2 cheques were issued as a security. Her husband was examined as DW.1. Exts. D1 and D2 – two receipts dated 1.11.99 and 8.2.2000 respectively, were marked. Learned Magistrate, on appraisal of the evidence, arrived at a conclusion of guilt. Consequently, the revision petitioner was convicted and sentenced to simple imprisonment for six months with direction to pay Rs. 20,000/- as compensation to the first respondent. In Crl.A. 163/2003, CRL.R.P. 668/2005 2 the Additional Sessions Judge, Kottayam, by judgment dated 6.1.2005, while confirming the conviction, reduced the sentence to simple imprisonment for one month. The order to pay compensation was sustained. Assailing the legality, correctness and propriety of the above conviction and sentence as modified in appeal, this revision petition was preferred. 2. I have heard Sri. Surin George, learned counsel appearing for the revision petitioner and perused the judgments of the courts below as well as evidence on record. PW.1 supported by Exts.P1 to P11 had succeeded to establish that the revision petitioner owed a sum of Rs. 20,000/- to the first respondent, in discharge of which Exts. P2 and P3 cheques, both dated 10.5.2000, each for Rs. 10,000/- were issued. When presented for collection, those cheques were returned dishonoured for insufficient funds along with Exts.P4 and P5 memo and intimation. Demanding discharge of the liability a lawyer notice, copy of which was marked as Ext.P6, was caused. Despite the acknowledgment of notice as evidenced by Ext.P8, the liability was not discharged. Though the revision petitioner took up a defence that cheques were issued as security and liability was discharged, she miserably failed to establish the defence despite her husband was examined as DW.1. There is no whisper in the evidence of DW.1 that CRL.R.P. 668/2005 3 Exts.P2 and P3 cheques were issued to the first respondent as security. Exts.D1 and D2 are before the date of issuance of Exts.P2 and P3. Therefore, Exts. D1 and D2 would not enure to the defence. It is also pertinent to note that despite the acknowledgment of notice demanding discharge and threatening to prosecute, the revision petitioner remained silent. Had the defence now set up been true, the revision petitioner would have retorted to the notice. The silence of the revision petitioner after acknowledging the notice looms large. Whereas the evidence of PW.1 supported by the presumptions under Section 118 and 139 of the Negotiable Instruments Act would establish the prosecution case. There is nothing on record to conclude that the revision petitioner had even advanced a probable case of discharge. In the above circumstances, I find that the conviction under challenge is based upon cogent evidence and there is no illegality, error or impropriety to be rectified in exercise of the revisional powers. Having taken note that the revision petitioner is a house wife engaged in business and the failure of the business led her to face the prosecution, I find that on general consideration she is entitled to leniency in sentence and that a sentence of imprisonment till the rising of the court with a fine of Rs. 22,000/- (Rupees twenty two thousand) would meet the ends of justice. CRL.R.P. 668/2005 4 In the result, the revision petition is disposed of. While confirming the conviction, the sentence is reduced to imprisonment till the rising of the court and a fine of Rs. 22,000/- (Twenty two thousand only). In default of payment of fine, the revision petitioner shall undergo simple imprisonment for one month. In the event of realization of fine, an amount of Rs. 20,000/- (twenty thousand only) shall be paid to the first respondent as compensation. The revision petitioner is granted three moths time to remit the fine amount. P.S. GOPINATHAN, (JUDGE) knc/-