IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 7TH JANUARY 2011 / 17TH POUSHA 1932 Crl.Rev.Pet.No. 748 of 2004(C) ------------------------------ ( S.T.NO.341/2000 OF JUDICIAL FIRST CLASS MAGISTRATE COURT I, KOZHIKODE CRL.APPEAL NO.512/2002 OF SESSIONS COURT, KOZHIKODE) REVN. PETITIONER(S): ACCUSED ---------------------------- K.V.LAKSHMI, W/O. APPUKUTTAN, PUTHANPURA HOUSE, C/O. GOKULESAN, H.NO. 38/2486, THAVUNDAPURAM THAZHAM, EAST HILL, KOZHIKODE 673 005. BY ADV. SRI.T.SETHUMADHAVAN RESPONDENT(S): COMPLAINANT -------------------------- 1. M/S. E.VASUDEVAN, 9/484, E.K.ROAD, KOZHIKODE 673 001, REPRESENTED BY ITS MANAGING PARTNER, E.VASUDEVAN S/O. KUTTAN 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ADV. SRI.DEVAPRASANTH.P.J. FOR R1 PUBLIC PROSECUTOR SRI.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.A.NO.3047/2004 IN CRL.R.P.NO.748 OF 2004 DISMISSED 7-1-2011 Sd/-, P.Q.BARKATH ALI, JUDGE P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.748 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of January, 2011 ORDER Revision petitioner is the accused in S.T.No.341/2000 on the file of Judicial First Class Magistrate Court I, Kozhikode and appellant in Crl.Appeal No.512/2002 of Sessions Court, Kozhikode. She was convicted under Section 138 of Negotiable Instruments Act and was sentenced to undergo simple imprisonment for one month. The accused has now come up in revision challenging her conviction and sentence. 2. The case of the first respondent/complainant as testified by him as PW1 before the trial court and as detailed in the complaint was that towards the value of boiled rice sold to the accused by the complainant, accused issued the cheque Ext.P2 dated September 8, 1999 for Rs.13,230/- drawn on the Calicut City branch of South Malabar Gramin Bank which when presented for collection was returned dishounoured for want of sufficiency of funds in the account Crl.R.P.No.748/04 2 of the accused in the bank and that in spite of notice Ext.P4 dated October 22, 1999, the accused did not repay the amount which is an offence punishable under Section 138 of Negotiable Instruments Act. 3. On receipt of the complaint, the learned Magistrate recorded the sworn statement of the complainant PW1 and took cognizance of the offence. The accused on appearance before the trial court pleaded not guilty to a charge under Section 138 of Negotiable Instruments Act. PW 1 was examined and Exts.P1 to P9 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the accused denied the entire transaction. No defence evidence was adduced. 4. The learned Magistrate on an appreciation of evidence found the revision petitioner guilty of the offence punishable under Section 138 of Negotiable Instruments Act, convicted her thereunder and sentenced her as aforesaid which is confirmed in appeal. The accused has now come up in revision challenging her conviction and sentence. 5. Heard the counsel for the revision petitioner/accused and Crl.R.P.No.748/04 3 the counsel for the revision first respondent/complainant. 6. The following points arise for consideration : 1) Whether the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act rendered by the trial court which is confirmed in appeal can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? Point No.1 7. Complainant as PW1 testified in a convincing manner before the trial court regarding the transaction. Nothing was brought out during his cross examination to disbelieve his evidence. Further his evidence is supported by Exts.P1 to P9. 8. The specific case of the accused as suggested during cross examination of PW1 and as stated by her when questioned under Section 313 Cr.P.C. was that she gave a blank cheque to one Krishnadas when availed a loan of Rs.5,000/- from him and misusing that cheque, the complainant has foisted this false case. No evidence was adduced by her to prove her case. Therefore, in my view, both the courts below are justified in rejecting the above case of the accused. Further, as the execution of the cheque Ext.P1 was admitted by the Crl.R.P.No.748/04 4 accused, presumption as envisaged under Section 118 and 139 of Negotiable Instruments Act is available to the complainant. No reliable evidence was adduced by the accused to rebut the above presumption. 9. For all these reasons, I am of the view that the trial court as well as the lower appellate court are perfectly justified in accepting the evidence of PW1 and finding that the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. Therefore I confirm the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act. Point No.2 10. As regards the sentence, the Trial court imposed a sentence of simple imprisonment for one month which is confirmed in appeal. As the accused is a lady and the transaction is of the year 1999 and the amount involved is only Rs. 13,230/-, I feel that a sentence of fine of Rs. 14,000/- would meet the ends of justice. In the result, revision petition is allowed in part. The conviction of the revision petitioner under Section 138 of Negotiable Instruments Act is confirmed. The substantive sentence imposed by the trial court Crl.R.P.No.748/04 5 which is confirmed by the lower appellate Court is set aside. She is sentenced to pay a fine of Rs.14,000/-, in default to undergo simple imprisonment for two months. Three months' time is granted for payment of fine. The fine amount, if realised, shall be paid to the complainant as compensation. Her bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.748/04 6