IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3978 of 2009()
1. SHEELAKUMARI,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. SATHYABHAMA,
For Petitioner :SRI.VINOY VARGHESE KALLUMOOTTILL
For Respondent : No Appearance
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :22/12/2009
O R D E R
P.S.GOPINATHAN,J.
======================
Crl.R.P. No. 3978 of 2009
======================
Dated this the 22th day of December, 2009.
O R D E R
The revision petitioner was convicted by the Judicial Magistrate of the
First Class-III, Kollam in S.T.No.151 of 2007 on her file for offence
under Section 138 of the Negotiable Instruments Act and sentenced to
simple imprisonment for three months and to pay a fine of Rs.1,50,000/-
with a default sentence of simple imprisonment for one month. The fine, on
realization was ordered to be paid to the 2nd respondent as compensation. In
Crl.Appeal No.368/2008, the III Additional Sessions Judge, Kollam,
while confirming the conviction, reduced the substantive sentence to
imprisonment till the rising of the court. The fine and the order to pay
compensation were sustained. Assailing the legality, correctness and
propriety of the above conviction and sentence as reduced to in appeal, this
revision petition was filed.
2. Having heard the learned counsel for the revision petitioner and
perusing the judgments of the courts below, I find that the 2nd respondent,
who was examined as PW1 had succeeded to establish that the revision
petitioner, who is an employee in the District Co-operative Bank borrowed
Crl.R.P. No. 3978 of 2009 2
a sum of Rs.1,50,000/- to the 2nd respondent. In discharge of that liability
Ext.P1 cheque dated 2.8.2005 was issued and that when presented for
collection Ext. P1 cheque was dishonoured for the reason “account closed”
as evidenced by Ext.P2 and P3 memos. Though the 2nd respondent caused
a notice dated 23.12.05, copy of which was marked as Ext.P4 demanding
discharge of the liability and which was acknowledged by revision
petitioner, as evidenced by Ext.P6 dated 27.12.2005, the liability was not
discharged. But Ext. P7 reply was caused, totally denying the transaction.
3. During the course of the cross examination of PW1, the revision
petitioner took up a defence that the sister of the revision petitioner, who
was also working as Joint Secretary of the NSS Karayogam, wherein the 2nd
respondent is the Secretary, borrowed a sum of Rs.40,000/- for which
Ext.P1 cheque was issued as security and misusing that cheque, prosecution
was launched. No such defence was advanced in the reply notice. The
nature of the defence would show that the revision petitioner has, in fact,
no consistent defence. Though PW1 was subjected to searching cross
examination regarding the liability and delivery of Ext.P1 the evidence of
PW1 could not be shaken. The evidence of PW1 is supported by
presumptions under Section 118 and 139 of the Negotiable Instruments Act.
Crl.R.P. No. 3978 of 2009 3
The inconsistent defence suggestions, which remains to be a suggestion is
not at all sufficient to rebut the presumption in favour of the 2nd respondent.
There is no material on record to come to a conclusion that PW1 got Ext.P1
cheque in any manner other than what was affirmed by PW1. Even by the
cross examination of PW1, a preponderance of probability in favour of the
revision petitioner also could not be established. In the above
circumstances the courts below were justified in rejecting the defence
theory. The evidence of PW1 remains uncontraverted. It is revealed that the
account was closed after issuing cheque. Closing account after issuing
cheque also would establish offence under Section 138 of the Negotiable
Instruments Act. The courts below rightly believed PW1 and arrived at a
conclusion of guilty. I find no reason to interfere with the conviction
under challenge.
4. The appellate court was very lenient in reducing the substantive
sentence to imprisonment till the rising of the court. The appellate court, if
at all erred, in sentence it is only towards leniency. I find no reason to
interfere with the sentence also.
In the result, this revision petition is dismissed as devoid of merits.
The revision petitioner is granted six month’s time to remit the fine. Till
Crl.R.P. No. 3978 of 2009 4
then, the bail bond executed by her shall remain in force.
P.S.GOPINATHAN,JUDGE.
mns