IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 11TH JULY 2011 / 20TH ASHADHA 1933 Crl.Rev.Pet.No. 1647 of 2011() ------------------------------------------- CRA.NO. 627/2009 of I ADDL. SESSIONS COURT, PALAKKAD CC.NO. 73/2008 of JUDICIAL MAGISTRATE OF FIRST CLASS - II,OTTAPALAM .................... REVN. PETITIONER(S): REVISION PETITIONER/APPELLANT/ACCUSED: ------------------------------------------------------------------------------------------------------- V.K.SOBHANA, AGED 29 YEARS, W/O.MOHANDAS, RESIDING AT VALAYANTHODI VEEDU, KARAKKAD P.O., KAVALAPPARA, KOONTHARA, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.SAIBY JOSE KIDANGOOR SRI.BENNY ANTONY PAREL RESPONDENT(S): STATE & COMPLAINANT: ---------------------------------------------------------------- 1. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. SIVASANKARAN E., AGED 54 YEARS, S/O.RAMAN, EDAPPARAMBIL HOUSE, KOONATHARA P.O., OTTAPALAM TALUK, PALAKKAD DISTRICT. R1 BY PUBLIC PROSECUTOR SRI.SABU SREEDHARAN R2 BY ADV. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P No.1647 OF 2011 -------------------------------- Dated this the 11th day of July 2011 ORDER The revision is filed by the accused, a lady, convicted for the offence under Section 138 of the Negotiable Instruments Act (for short, NI Act). The trial Magistrate, finding her guilty of the offence, convicted and sentenced her to undergo imprisonment for a day, till the rising of the court, and to pay compensation of Rs.65,000/-, the cheque amount, with default term of imprisonment for 15 days. In appeal, the learned Sessions Judge confirmed that conviction and also the sentence. Feeling aggrieved, she has preferred this revision impeaching the legality, propriety and correctness of the orders concurrently made by the two inferior courts. 2. The learned counsel for the revision petitioner (accused) contended that the case of the complainant was found credit worthy for the sole reason that the accused failed to establish the defence canvassed. Both the courts below have not appreciated the question whether the complainant has proved the execution of the cheque and also the loan transaction alleged, submits the counsel. 3. The accused has contended that a loan of Rs.5,000/- alone was obtained by her husband from the complainant, who is alleged to Crl.R.P No.1647/2011 - 2 - be a money lender, on the security of two blank signed cheques and also title deeds of her property. Two part payments, of Rs.500/- each, were made by her husband in respect of the loan was her further case. The complainant had initially filed a suit on the basis of title deeds obtained, but, through another, claiming a decree for a sum of Rs.50,000/-. The defence so set up was sought to be sustained by examining the plaintiff in the aforementioned suit as DW1. Though the complainant, in his evidence, had denied of having any money transaction with the husband of the accused, the contra evidence given by DW1 was not appreciated is the challenge espoused. Where no positive evidence was tendered by the complainant to prove the execution of Ext.P1 cheque by the accused and also the loan transaction imputed, according to the counsel, both the courts have founded a conviction against the accused for the reason that defence canvassed by her has not been proved. 4. Per contra, the learned counsel for the 2nd respondent/complainant contended that having regard to the limited scope of revisional jurisdiction, concurrent finding of guilt entered against the accused is not liable to be interfered with, especially where it is founded on the legal evidence tendered in the case. Case of the complainant is amply demonstrated by the materials tendered, Crl.R.P No.1647/2011 - 3 - and in fact, there was not even a reply to the notice issued intimating dishonour and demanding the payment of the cheque, is the submission of the counsel. The evidence of DW1 and the dismissal of the suit filed by him in no way affects the credibility of the case canvassed by the complainant and both the courts below have rightly and correctly negatived the defence taken by the accused, which, in fact, was nothing but a false plea raised to wriggle out penal consequences arising on dishonour of the cheque issued by her, is the further submission of the counsel. 5. I have perused the judgments of the courts below with respect to the submissions made by the counsel on both sides. True, the revision petitioner has taken a belated defence in trial that the cheque was not issued by her under the circumstances alleged by the complainant. She contends, a blank signed cheque was handed over to the complainant by her, as security for another transaction as between her husband and complainant. The receipt of the notice on dishonour of the cheque, is not disputed. No tenable exaplanation was offered why she did not send a reply if at all she had a case that the cheque was not issued under the circumstances stated by the complainant. The trial magistrate, who had opportunity to watch the demeanour and deportment of the witnesses, found the testimony of Crl.R.P No.1647/2011 - 4 - the complainant examined as PW1 trustworthy. No circumstances whatsoever have been brought to my notice in what way the Magistrate had gone wrong in appreciating the evidence of the complainant. Merely because the defence has examined one witness to sustain the defence case pleaded, the creditworthiness of the complainant, could not have been diminished in any manner. Further more, it is interesting to note that whatever be the defence canvassed by the accused, denying the execution of the cheque and also the transaction pleaded by the complainant, she was not prepared to mount the box and face the cross examination by the complainant. That is also an added circumstance to be viewed with her failure to send a reply to the statutory notice issued on dishonour of the cheque, in examining her defence. As rightly contended by the learned counsel for the complainant, the finding of guilt entered by the courts below concurrently is not liable to be interfered with in exercise of the revisional jurisdiction, unless it is shown that such finding is perverse or it could not have been formed over the materials on record in the case. In the circumstances, I find the revision is devoid of any merit. 6. The learned counsel for the revision petitioner, urging that the petitioner is presently facing severe financial difficulties, pleaded Crl.R.P No.1647/2011 - 5 - for having some time to pay the amount fixed as compensation and thus avoid her incarceration for the default term. No objection is raised by the counsel for the complainant in providing reasonable time to pay the compensation amount. 7. The learned Magistrate is directed to keep in abeyance the execution of warrant against the petitioner/accused for a period of two months from today to enable her to pay the compensation fixed within such time. Irrespective of the payment of compensation, she shall undergo the substantive term of imprisonment for a day, till the rising of the court, for which she shall appear before the Magistrate on 19-09-2011. She, then, shall also report the payment of the compensation. In default of appearance or payment of compensation fixed, as directed, the learned Magistrate shall take steps to execute the sentence. Revision is dismissed subject to the above said directions. Sd/- S.S.SATHEESACHANDRAN vdv JUDGE //True Copy// P.A to Judge