IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 14TH DECEMBER 2009 / 23RD AGRAHAYANA 1931 Crl.Rev.Pet.No. 3270 of 2004(C) ------------------------------- CRA.842/2003 of ADDL.SESSIONS JUDGE(ADHOC-II), ERNAKULAM CC.1003/1999 of ADDL.CHIEF JUDICIAL MAGISTRATE (E & O),ERNAKULAM .................... REVN. PETITIONER : APPELLANT/ACCUSED: --------------------------------------- BHANUMATHY AMMA, W/O.PURUSHOTHAMAN, VETTAMPAZHOOR, NAYATHODU P.O. ANGAMALY VIA, ERNAKULAM. BY ADV. SRI.C.R.SIVAKUMAR RESPONDENT(S): 1ST AND 3RD ADDITIONAL RESPONDENT; ------------------------------------------------- 1. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. P.V.VARGHESE, POOVELI HOUSE, NAYATHODE P.O. ANGAMALY VIA, ERNAKULAM. ADV. SRI.T.O.XAVIER FOR R2 PUBLIC PROSECUTOR SRI.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.Gopinathan, J. ========================================== Crl.R.P.3270 of 2004 ========================================== Dated this the 14th day of December, 2009. ORDER 1.The revision petitioner was convicted by the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam in C.C.No.1003 of 1999 on his file for offence under Section 138 of the Negotiable Instruments Act and sentenced to simple imprisonment for two months and a fine of Rs.45,000/-. In default to pay fine, the revision petitioner was ordered to undergo simple imprisonment for one month. Fine, if realised, Rs.38,000/- was ordered to be paid to the complainant as compensation. Though the revision petitioner took up the matter in Crl.A.842 of 2003, she was not successful. Pending appeal, the complainant expired and one of his son was impleaded as additional third respondent in appeal. Assailing the above conviction and CRRP3270/04 -:2:- sentence, as confirmed in appeal, this revision petition was filed. 2.The evidence of the complainant as P.W.1 would show that the revision petitioner borrowed a sum of Rs.40,000/- on 25.3.1996 for the purpose of purchasing a bit of land and in discharge of the liability, Ext.P1 cheque dated 30.9.1996 for the said amount drawn on South Indian Bank, Angamaly branch was issued. When Ext.P1 was sent for collection, it was returned dishonoured for insufficiency of funds, as evidenced by Exts.P2 and P6 memos. Demanding discharge of the liability, a lawyer notice, copy of which was marked as Ext.P3 dated 28.11.1996, was issued. The revision petitioner returned the notice unclaimed. Liability was not discharged. 3.The revision petitioner took up a defence that she had no transaction with the deceased CRRP3270/04 -:3:- complainant. She purchased the property from one Pappachan and there was deficit of Rs.40,000/- for payment of the sale consideration. Though she asked for extension of time, the vendor was not willing. The vendor advised the revision petitioner to issue a cheque for the balance sale consideration of Rs.40,000/- in favour of the deceased complainant and accordingly a cheque was issued. It appears that the complainant paid the amount covered by the cheque to the vendor to facilitate the sale. According to her, though she paid back Rs.40,000/- along with an amount of Rs.7,500/-, the cheque was not returned. In support of that contention, she adduced oral evidence. The courts below disbelieved the testimony of the revision petitioner as D.W.1 and arrived a finding that there is no reason to disbelieve P.W.1. The defence case itself would show that Ext.P1 cheque was issued in favour of the complainant for getting a sum of Rs.40,000/- CRRP3270/04 -:4:- for the purpose of purchase of property. When the evidence of P.W.1 is read in conjunction with the defence version, I find that the courts below had correctly appreciated the evidence and came to a finding that there was a liability of Rs.40,000/- for the discharge of which Ext.P1 was issued by the revision petitioner. Regarding the discharge alleged, there is no document other than the oral evidence. The courts below rightly disbelieved the plea of discharge. I find that the conviction under challenge is based upon cogent evidence. 4.The revision petitioner being a housewife now in her fifties, she is entitled to a little leniency in sentence on gender consideration. I find that sentence of imprisonment till rising of court with fine as ordered by the trial court would meet the ends of justice. CRRP3270/04 -:5:- In the result, this revision petition is allowed in part. While confirming the conviction, substantive sentence is reduced to imprisonment till rising of the court. In all other respects, the order of the appellate court is confirmed. The revision petitioner is granted one month's time to remit the fine. Till then, the bail bond executed by her shall remain in force. If any amount is deposited by the revision petitioner before the trial court, that shall be given credit to. P.S.Gopinathan, Judge. sl.