IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 795 of 2007()
1. REENA JOSE, CHEERUVELIL,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY PUBLIC
... Respondent
2. P.R.NARAYANAN NAIR,
For Petitioner :SRI.V.PHILIP MATHEW
For Respondent :SRI.V.SETHUNATH
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :22/10/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
CRL.R.P.NO. 795 OF 2007
............................................
DATED THIS THE 22nd DAY OF OCTOBER, 2008
ORDER
Petitioner is the accused and first respondent, the
complainant in S.T.1578 of 2004 on the file of Judicial First Class
Magistrate-II, Pathanamthitta. Case of second respondent was
that petitioner borrowed Rs.1,75,000/- and towards it repayment,
issued Ext.P1 cheque drawn in his account maintained in
Chandanappally Branch of Federal Bank. When Ext.P1 cheque
was presented for encashment, it was dishonoured for want of
sufficient funds under Ext.P2. Second respondent sent Ext.P4
notice. It was received by petitioner under Ext.P6 postal
acknowledgment card. Petitioner did not pay the amount.
Complaint was lodged, contending that offence under Section
138 of N.I.Act was committed. Chief Judicial Magistrate,
Pathanamthitta took cognizance of the offence. Petitioner was
tried by Judicial First Class Magistrate, Pathanamthitta after the
case was transferred to him. Petitioner pleaded not guilty.
Second respondent was examined as PW1. Exts.P1 to P6 were
marked.
2. Learned Magistrate, on the evidence, found petitioner
CRRP 795/2007 2
guilty. She was sentenced to simple imprisonment for six months
and a compensation of Rs.1,90,000/- and in default, simple
imprisonment for three months. Petitioner challenged the
conviction and sentence before Sessions Court, Pathanamthitta
in Crl.A.338 of 2005. Learned Additional Sessions Judge, on
reappreciation of evidence, confirmed the conviction and
sentence and dismissed the appeal. It is challenged in this
revision petition.
3. Learned counsel appearing for petitioner and second
respondent were heard. The argument of learned counsel is that
learned Magistrate passed the judgment before hearing
petitioner on the date on which the case was posted for
arguments and learned Sessions Judge, in appeal did not
properly consider this aspect. It was also argued that the proof
affidavit filed by second respondent does not disclose when the
notice was sent and when notice was received and in such
circumstances courts below were not justified in convicting the
petitioner, in view of the answer given by PW1 in cross
examination. It was also argued that in any case, there is no
evidence to prove that petitioner borrowed the amount and the
cheque was issued towards its repayment and above all the
CRRP 795/2007 3
sentence awarded is excessive. Learned counsel appearing for
second respondent argued that courts below properly considered
the evidence and there is no reason to interfere with the
conviction and sentence.
4. The proceeding paper of learned Magistrate shows that
on 10.10.2005, petitioner was questioned under Section 313 of
Code of Criminal Procedure and case was posted for defence
evidence to 13.10.2005. On 13.10.2005, no defence evidence was
adduced and the case was posted to 19.10.2005 for hearing.
The proceeding paper only shows that petitioner was absent on
that day and arguments were heard and petitioner was found
guilty and convicted. For the reason that judgment was
pronounced on the same day on which arguments were heard, it
is not possible to hold that petitioner was not heard before the
judgment was passed.
5. The case of second respondent as spoken to by PW1 is
that the husband of petitioner is one of his friends and
Rs.1,75,000/- was borrowed by petitioner for construction of her
house and towards its repayment, Ext.P1 cheque was issued.
The case of petitioner at the time of questioning under Section
313 of Code of Criminal Procedure was that she was an
CRRP 795/2007 4
employee of a financial institution run by second respondent and
she worked there for six months and for that employment, a
signed blank cheque was given as security and it is Ext.P1
cheque. Pw1 denied that he was running such an institution.
Apart from the suggestion no other evidence was adduced either
to prove that second respondent was running a financial
establishment, or that petitioner was an employee therein or that
she had given a signed blank cheque as security. If the defence
case is true, in the ordinary human conduct, when a notice
demanding Rs.1,75,000/- based on Ext.P1 is received, she would
have sent the reply narrating the true facts. In such
circumstances, appreciating the entire evidence, I do not find
any reason to interfere with the finding of courts below that
Ext.P1 cheque was issued by petitioner towards repayment of
the existing liability. Evidence establish that it was dishonoured
for want of sufficient funds. Though PW1 did not give the date on
which Ext.P4 notice was sent, or it was received by petitioner,
both the dates are seen from Ext.P4 and P6. In fact in Ext.P6,
there is a dated signature of petitioner herself. In such
circumstances, failure to give the date in chief examination is
not very material. Evidence establish that within the statutory
CRRP 795/2007 5
period, notice was sent and complaint was also filed. Conviction
of petitioner for the offence under Section 138 of N.I.Act is
perfectly legal.
6. Then the question is with regard to sentence. Ext.P1
cheque is for Rs.1,75,000/-. Interest of justice will be met, if the
sentence is modified to imprisonment till rising of court and a
fine, for the amount covered by the dishonoured cheque with a
direction to pay the same to second respondent as compensation
under Section 357(1) of Code of Criminal Procedure.
7. Revision petition is allowed in part. Conviction of
petitioner under Section 138 of N.I.Act is confirmed. Sentence is
modified to imprisonment till rising of court and a fine of
Rs.1,75,000/- and in default, simple imprisonment for one month.
On realisation of the fine, it is to be paid to second respondent as
compensation under Section 357(1) of Code of Criminal
Procedure. Petitioner is granted two months time to pay the fine.
Petitioner is directed to appear before learned Magistrate on
29.12.2008.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-