IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 9TH DECEMBER 2009 / 18TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 3764 of 2009() ------------------------------------------- CRA.508/2005 of I ADDL. SESSIONS COURT, PALAKKAD ST.5362/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT, CHITTUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------- SARASWATHY, W/O. SUBRAMANIAN, ARANGAM ROAD, THATHAMANGALAM, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. MR.K.P.BALAGOPAL RESPONDENT(S): ------------------------- 1. ANITHA, W/O. PARAMESWARAN, ARANGAM ROAD, THATHAMANGALAM CHITTUR TALUK, PALAKKAD DIST. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADVS. MR.SAJAN VARGHEESE K. , MR.LIJU. M.P. R2 BY PUBLIC PROSECUTOR MR.P.R.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss P.S.Gopinathan, J. ========================================== Crl.R.P.3764 of 2009 ========================================== Dated this the 9th day of December, 2009. ORDER 1.The first respondent prosecuted the revision petitioner before the Judicial Magistrate of the First Class, Chittur in S.T.No.5362 of 2004 alleging offence under Section 138 of the Negotiable Instruments Act with a plea that by different occasions the revision petitioner borrowed Rs.3,78,000/- and in discharge of the liability, a cheque which was marked as Ext.P2 dated 14.6.2004 drawn on Catholic Syrian Bank Limited, Thathamangalam branch was issued and that when Ext.P2 was sent for collection, it was returned dishonoured for insufficiency of funds and that despite the demand to discharge, the liability was not discharged. 2.The revision petitioner pleaded not guilty when the particulars of the offence were read over and CRRP3764/09 -:2:- explained. She was sent for trial. On the side of the first respondent, her husband, who is the power of attorney holder, was examined as P.W.1. Exts.P1 to P6 were marked. When questioned under Section 313 Cr.P.C., the revision petitioner took up a defence of total denial. She was examined as D.W.1 and Exts.D1 and D2 were marked on her side. Learned Magistrate, on appraisal of the evidence, arrived a finding of guilt. Consequently, the revision petitioner was convicted and sentenced to simple imprisonment for three months and a fine of Rs.5,000/- with a default sentence of simple imprisonment for one month. Aggrieved by the conviction and sentence, the revision petitioner preferred an appeal as Crl.A.508 of 2005. Assailing the inadequacy of the sentence, the first respondent preferred a revision as Crl.R.P.1 of 2006. Both matters were heard together. The Ist Additional Sessions Judge, Palakkad, by a common judgment/order dated CRRP3764/09 -:3:- 28.2.2009, while allowing the appeal and the revision petition in part, confirmed the conviction and the sentence was modified to a fine of Rs.3,80,000/-. Fine, on realisation, was ordered to be paid to the first respondent as compensation under Section 357(1) Cr.P.C. A default sentence of simple imprisonment for one month was also ordered. Assailing the legality, correctness and propriety of the above conviction and sentence, as modified in appeal, this revision petition was preferred by the accused. 3.The first respondent took notice. The revision petitioner and the first respondent were heard. The judgments of the courts below were perused. The evidence of P.W.1 coupled with Exts.P2 to P6 would show that the revision petitioner owed a sum of Rs.3,78,000/- to the first respondent and it is in discharge of the said liability, Ext.P2 cheque was issued and that when it was presented CRRP3764/09 -:4:- for collection, as evidenced by Ext.P3 memo, it was returned bounced for insufficiency of funds and that despite the acknowledgement of notice demanding discharge, the liability was not discharged. Ext.P6 reply notice was caused. In Ext.P6 the revision petitioner had advanced a case that she had borrowed only Rs.30,000/- and Ext.P2 cheque was issued as a security. But, when she entered the witness box as D.W.1, she had given a go-by to the pleadings in the reply notice. She had stated that on different occasions, she had borrowed Rs.1,000, Rs.2,000/-, Rs.3,000/- etc. The statement in the reply notice that she had borrowed Rs.30,000/- was totally denied by her. In cross-examination it was revealed that the first respondent is known to the revision petitioner for more than 15 years and for about 15 years, she had been borrowing from the first respondent on many occasions. So, the evidence of D.W.1 would show that in fact the CRRP3764/09 -:5:- revision petitioner has no good defence at all. She had been blowing hot and cold. The evidence of D.W.1 supports the liability deposed by P.W.1. Of course, the liability to the extent deposed by P.W.1 is not admitted. But it is crucial to note that the revision petitioner has no specific case. There is nothing to show that the liability is anything lesser than that was deposed by P.W.1. In the above circumstances, the courts below had believed the evidence of P.W.1 supported by Ext.P2 and the presumptions under Sections 118 and 139 of the Negotiable Instruments Act. The evidence of P.W.1 remains unimpeached and uncontroverted. According to the learned counsel for the revision petitioner, the revision petitioner, evidenced by Exts.D1 and D2, is physically disabled and in the normal course it cannot be believed that such a huge amount was borrowed by the revision petitioner. It is true that Exts.D1 and D2 would show that the revision CRRP3764/09 -:6:- petitioner is physically disabled. But, that is not at all a reason to reject the evidence of P.W.1 supported by Ext.P2 and to some extent by the evidence of the revision petitioner. The revision petitioner has no consistent defence. The evidence on record is not sufficient enough to come to a conclusion that Ext.P2 cheque was issued by the revision petitioner to the first respondent for any purpose other than what was deposed by P.W.1. There is little material to show that the liability was anything lesser than what is covered by Ext.P2. There is no material to show that there was any discharge. I find that the conviction is based upon cogent evidence. 4.The courts below were very lenient in awarding sentence probably taking note of the physical disability of the revision petitioner. There is no reason to interfere with the sentence also. CRRP3764/09 -:7:- The revision petition is devoid of merits. Accordingly it is dismissed. The revision petitioner is granted six months time to pay the fine. Till then, the bail bond executed by her shall remain in force. P.S.Gopinathan, Judge. sl.