IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 28TH MAY 2009 / 7TH JYAISHTA 1931 Crl.Rev.Pet.No. 1671 of 2009() ------------------------------ CRA.422/2005 of ADDL.SESSIONS COURT,-II, MAVELIKKARA CC.5/2005 of JUDL.MAGISTRATE OF FIRST CLASS-I, HARIPAD .................... REVN. PETITIONER(S)/APPELLANT/ACCUSD ---------------------------------------------- VIJAYAMMA,W/O.LATE SATHEESAN, EZHICKAL PUTHUVELIL VEEDU, MAHADEVIKADU MURI,KARTHIKAPPALLY TALUK. BY ADV. SRI.S.MOHANAN RESPONDENT(S): RESPONDENTS/COMPLAINANT -------------------------- 1. USHA,W/O.GOPALAKRISHNAN (3RD RESPONDENT) "USHAS",PALLANA MURI, THRIKKUNNAPUZHA VILLAGE. 2. STATE OF KERALA, REP.BY THE (2ND RESPONDENT), PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1671 of 2009 -------------------------------------- Dated this the 28th day of May, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to make and which is not prejudicial to her. Public Prosecutor takes notice for respondent No.2. 2. This revision is in challenge of concurrent findings entered by the courts below that the cheque issued by the petitioner in favour of respondent No.1 for the discharge of a legally enforceable debt/liability was dishonoured for insufficiency of funds and that in spite of dishonour intimation and demand petitioner did not discharge the liability and thereby committed the offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act). According to respondent No.1, petitioner borrowed Rupees two lakhs from her and on demanding repayment issued Ext.P1, cheque dated 20.11.2004 for the discharge of that liability. On presentation for encashment that cheque was dishonoured for insufficiency of funds. Dishonour of cheque for the above said reason and issue and service of statutory notice on the petitioner are proved by Exts.P2 to P5. Petitioner did not give any reply. Respondent No.1 gave evidence as PW1 and proved Exts.P1 to P5. Case set up by the petitioner is that one Kesavan and others had lodged a complaint against her during the month of August-September, 2004 and in connection with that signed blank Crl.R.P.No.1671/2009 2 cheque was given. Petitioner gave evidence as DW5 and proved Exts.D1 to D5. DWs 3 and 4 were examined to prove petitioner's poor financial condition. DWs 1 and 2 are the Sub Inspector and Head Constable of the police station concerned. They were examined to prove that Kesavan and others had lodged complaint against the petitioner but they denied that there was any such complaint. Ext.D1 is the death certificate of petitioner's husband. Exts.D2 and D3 are the copy of complaint and written statement in O.S.No.208 of 2004 filed by petitioner against Kesavan and others. Exts.D4 and D5 are receipt and notice issued by a financing company. These documents do not affect the case and evidence set up by respondent No.1. Nothing is brought out to disbelieve the evidence of respondent No.1. That Ext.P1 contained signature of the petitioner is admitted and proved. That goes a long way in proving the due execution of the cheque. Moreover petitioner did not reply the statutory notice inspite of the fact that the notice demanded payment of a fairly big amount. There is no proper explanation for not replying to the demand notice. There is also no evidence to show that petitioner gave cheque in the circumstances stated by her. In these circumstances, courts below are justified in holding that petitioner is guilty of offence punishable under Section 138 of the Act. 3. Learned magistrate sentenced the petitioner to undergo simple imprisonment for six months and directed payment of Rs.2,10,000/- as compensation with default sentence for three months. In appeal, conviction Crl.R.P.No.1671/2009 3 and sentence of the petitioner were confirmed. Learned counsel requested for leniency in the matter of sentence. Having regard to the nature of the offence and the object of legislation I am satisfied that simple imprisonment till rising of the court and payment of compensation as awarded by the courts below with the default sentence provided is sufficient in the ends of justice. 4. Learned counsel requested that leniency may be shown to the petitioner and that she may be granted six months' time to deposit compensation in the trial court. It is stated that petitioner is not able to raise the sum of Rs.2,10,000/- immediately. Considering the amount involved and the circumstances stated by the learned counsel, petitioner is granted three months time to deposit compensation in the trial court. Resultantly, this revision petition is allowed in part to the following extent: i. Substantive sentence awarded to the petitioner by the courts below is modified as simple imprisonment till rising of the court. ii. Petitioner is granted three months' time from this day to deposit compensation in the trial court. In case of failure, petitioner shall undergo simple imprisonment for three months as ordered by the courts below. iii. It is made clear that it will be sufficient compliance with the direction for payment of compensation if petitioner paid the compensation to respondent No.1 through her counsel in the trial court and respondent No.1 filed a statement in the trial court through her counsel acknowledging the receipt Crl.R.P.No.1671/2009 4 of the compensation within the aforesaid time. iv. Petitioner shall appear in the trial court on 7.9.2009 to receive the sentence. Crl.M.A.No.5092 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks