IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2043 of 2009()
1. RADHA VIJAYAKUMAR, W/O.VIJAYAKUMAR,
... Petitioner
Vs
1. A.V.MOHANDAS, S/O.VELUKUTTY,
... Respondent
2. STATE OF KERALA REPRESENTED BY
For Petitioner :SRI.RAJESH SIVARAMANKUTTY
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :26/06/2009
O R D E R
THOMAS P.JOSEPH, J.
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CRL. R.P. NO.2043 of 2009
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Dated this the 26th day of June, 2009
O R D E R
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Notice to respondent No.1 is dispensed with in view of the order
I am proposing to pass which is not prejudicial to him. Public
Prosecutor took notice for respondent No.2.
2. This revision is in challenge of judgment of learned
Additional Sessions Judge (Adhoc-I), Palakkad in Crl. Appeal No.683 of
2007 confirming conviction of petitioner for offence punishable under
Section 138 of the Negotiable Instruments Act but modifying sentence.
3. Case arose on a private complaint preferred by respondent
No.1. He alleged that for discharge of a liability to him petitioner
issued Ext.P1, cheque dated 26.7.2006 for Rs.75,000/-. That cheque
was dishonoured for insufficiency of funds which is proved by Exts.P2
and P3. Respondent No.1 issued statutory notice to the petitioner
intimating dishonour and demanding payment. Issue and service of
statutory notice are proved by Exts.P3 and P4 series. Respondent
No.1 gave evidence as P.W.1 and stated that petitioner borrowed
Rs.85,000/- from him and in partial discharge of that liability issued
cheque for Rs.75,000/-. Case pleaded by petitioner in the trial court
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is that she had no transaction with respondent No.1, nor had she
issued any cheque. She had left a blank cheque in her vehicle and
respondent No.1 who stealthily got it misused the same. Courts below
were not impressed by that contention of petitioner and found her
guilty. That finding is under challenge in this revision. Learned counsel
for petitioner contends that due execution of the cheque is not
proved.
4. It is true that going by the suggestion to P.W.1 in cross-
examination petitioner does not admit that she signed Ext.P1. The
contention of petitioner cannot be accepted since assuming that
petitioner had lost unsigned blank cheque from her vehicle she would
have in the normal course preferred a complaint to the authorities
concerned. Nothing of that sort was done. She would have also
informed her bank about the loss of cheque and given instruction for
stopping payment as per that cheque. That also did not happen. A
further fact to be noted is that in spite of respondent No.1 informing
petitioner about dishonour of the cheque for Rs.75,000/- and claiming
that petitioner issued that cheque for repayment of the loan and
demanding payment of the amount petitioner did not reply to the
notice. Learned magistrate has observed that none of the contesting
parties took steps to get the signature in the cheque examined by
expert. Learned magistrate was constrained to compare the
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signature with the admitted signature of petitioner. Learned
magistrate observed that no dissimilarity could be noticed between
the disputed and admitted signatures of petitioner. Learned
magistrate further observed that there is no reason to disbelieve the
evidence of P.W1 about the transaction and issue of cheque in his
favour. So holding, petitioner was found guilty. Appellate court has
confirmed that finding. I have gone through the judgments under
challenge and I do not find reason to disbelieve the evidence of P.W1
regarding the transaction and due execution of the cheque. Petitioner
cannot successfully challenge her conviction.
5. Learned magistrate sentenced petitioner to undergo simple
imprisonment for six months and directed her to pay Rs.75,000/- as
compensation. In default of payment, sentence of two months’ simple
imprisonment was also was ordered. Appellate court while retaining
the direction for payment of compensation and default sentence
modified substantive sentence as simple imprisonment till rising of
the court. I do not find reason to interfere with the sentence as
modified by the appellate court, direction for payment of
compensation and the default sentence as confirmed by that court.
6. Counsel for petitioner requested six months’ time to
deposit the compensation. Counsel submits that petitioner is a lady
and is unable to raise the amount immediately. Considering the
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circumstances stated by learned counsel I am inclined to grant five
months’ time to the petitioner to deposit compensation in the trial
court.
Resultantly, this revision fails. It is dismissed. Petitioner is
granted five months’ time from this day to deposit compensation in
the trial court. It is made clear that it shall be sufficient compliance
of the direction for deposit 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 his
counsel acknowledging receipt of compensation within the said
period.
Petitioner shall appear in the trial court on 28.11.2009 to
receive the sentence.
THOMAS P.JOSEPH, JUDGE.
vsv