IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 1ST DECEMBER 2011 / 10TH AGRAHAYANA 1933 Crl.Rev.Pet.No. 4152 of 2008() ------------------------------ CRA.38/2008 of ADDL.SESSIONS COURT (ADHOC) I, KOTTAYAM CC.35/2007 of JUDL. MAGISTRATE OF FIRST CLASS-II, CHENGANACHERRY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED:- --------------------- REMANI SHAJI, PUTHENPARAMBIL HOUSE, MALAKUNNAM PO., CHANGANACHERRY, BY ADV. SRI.SURIN GEORGE IPE RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE:- --------------- 1. VIJAYAKUMAR.L.R., SARANGI, ANANIMANGALAM, MALAKKUNNAM P.O, CHANGANACHERRY. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.G.SUKUMARA MENON FOR R1 SMT.DEEPTHI S.MENON FOR R1 PUBLIC PROSECUTOR SMT. SUNITHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P. Q. BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Crl.R.P. No. 4152 of 2008 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 1st day of December, 2011 O R D E R Revision petitioner is accused in C.C.No.35 of 2007 on the file of the Judicial Magistrate of the First Class-II, Changanacherry and appellant in Crl.A.No. 38 of 2008 on the file of the Addl. Sessions Court (Adhoc)-I, Kottayam Division. 2. The revision petitioner was convicted under section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for three months and to pay compensation of Rs. 70,000/- to the complainant, in default to undergo simple imprisonment for a further period of one month by the learned Magistrate by judgment dated January 8, 2008. On appeal by the accused, the lower appellate court by judgment dated September 9, 2008 confirmed her conviction, but modified the substantive sentence to imprisonment till the rising of court. The Crl.RP 4152/2008 2 direction to pay the compensation was maintained. The accused has come up in revision challenging her conviction and sentence. 3. The case of the 1st respondent/complainant, as testified by him as PW1 before the trial court and as detailed in the complaint, was that the accused borrowed Rs.70,000/- from the complainant and to discharge that debt she issued cheque Ext.P1 dated September 24, 2003, drawn on IDBI Bank, Thiruvalla 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.P4 dated October 22, 2003, the accused did not re-pay the amount. Therefore, the complainant filed the complaint before the trial court under section 138 of the Negotiable Instruments Act. 4. On receipt of the complaint, the learned Magistrate recorded the sworn statement of the complainant and took cognizance of the offence. The accused, on appearance before the trial court, pleaded not guilty to the charge Crl.RP 4152/2008 3 under section 138 of the Negotiable Instruments Act. PW1 was examined and Exts.P1 to P6 were marked on the side of the complainant. When the accused was questioned under section 313 Cr.P.C.by the learned Magistrate, she stated that she borrowed Rs.7,000/- from the wife of the complainant and at that time she issued a cheque writing only the amount in the cheque leaf, that she had already repaid that amount but the wife of the complainant did not return the cheque and that misusing that cheque, the complainant created Ext.P1. The accused examined DWs.1 and 2 to prove her case.. 5. The trial court, on an appreciation of the evidence, found the accused guilty of the offence punishable under section 138 of the Negotiable Instruments Act, convicted her thereunder and sentenced her as afore said. On appeal by the accused, the lower appellate court confirmed her conviction but modified the sentence as mentioned above. The accused has come up in revision challenging her conviction and sentence. Crl.RP 4152/2008 4 6. Heard the learned counsel for the revision petitioner and the learned counsel for the first respondent. 7. The following points arise for consideration in this revision:- 1) Whether the conviction of the revision petitioner under section 138 of the Negotiable Instruments Act can be sustained? 2) Whether the sentence imposed is excessive or unduly harsh? 8. The complainant as PW1 testified in terms of the complaint before the trial court regarding the transaction. Nothing was brought out during his cross-examination to discredit his evidence. Further, his evidence is supported by Exts.P1 to P6. 9. The case of the 1st respondent/accused was that the accused borrowed Rs.7,000/- from the wife of the complainant, for which she had issued a cheque showing only the amount in the cheque and that misusing that cheque the complainant created Ext.P1. DWs.1 and 2 were examined to prove her case. DW1 would say that she knew Crl.RP 4152/2008 5 the accused and the complainant, that the accused borrowed Rs.7,000/- from the wife of the complainant and that at that time the accused issued a cheque for Rs.7,000/- in the name of the complainant's wife. But, there was no correction in Ext.P1. Further, the case of the accused was that she has issued a cheque showing only the amount while DW1 stated that name of the wife of the complainant was written in Ext.P1. Therefore, the trial court as well as the lower appellate court is perfectly justified in rejecting her evidence. DW2 is the brother of the husband of the accused. He has also stated that the accused borrowed Rs.7,000/- from the wife of the complainant and issued a cheque. But, he has only hearsay evidence. He was not a witness to the transaction. Therefore, no reliance can be placed on his evidence. Further, as the issuance of Ext.P1 cheque was admitted by the accused, presumption as envisaged under sections 118 and 139 of the Negotiable Instruments Act is available to the complainant. The accused has not adduced any reliable evidence to rebut the above presumption. Crl.RP 4152/2008 6 10. For all these reasons I am of the view that the trial court as well as the lower appellate court is perfectly justified in convicting the accused under section 138 of the Negotiable Instruments Act. Therefore, her conviction thereunder is confirmed. 11. As regards the sentence, the trial court imposed a sentence of simple imprisonment for three months and to pay compensation of Rs.70,000/- with default sentence. The lower appellate court modified the substantive sentence to imprisonment till rising of court. The direction to pay compensation was maintained. I find no reason to reduce the sentence. 12. In the result, confirming the conviction of the revision petitioner rendered by the trial court, which was confirmed by the lower appellate court, and sentence, as modified by the lower appellate court, the revision petition is dismissed. Her bail bonds are cancelled. Two months' time is granted for payment of the compensation. 13. It is submitted that the revision petitioner had Crl.RP 4152/2008 7 deposited Rs.35,000/- before the trial court as per order dated December 23, 2008. The said amount shall be adjusted towards the compensation ordered. The revision petitioner shall surrender before the trial court on or before December 15, 2011 to undergo the sentence. P. Q. BARKATH ALI, JUDGE. mn.