IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2641 of 2005()
1. P.K. RASIYABI, W/O. KASIM MUSTHAFA,
... Petitioner
Vs
1. A.P. MOHAMMED, S/O. LATE KOYAMU HAJI,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.T.A.SHAJI
For Respondent :SRI.K.A.SALIL NARAYANAN
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :08/10/2010
O R D E R
P.Q.BARKATH ALI, J.
- - - - - - - - - - - - - - - - - - - - -
Crl.R.P.No.2641 OF 2005
- - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 8th day of October, 2010
ORDER
Revision petitioner is the accused in C.C.No.572/2001 of Judicial
First Class Magistrate Court I, Thamarassery and appellant in
Crl.Appeal No.294/2003 of Sessions Court, Kozhikode. He was
convicted under Section 138 of Negotiable Instruments Act and was
sentenced to undergo simple imprisonment for three months and to pay
a fine of Rs. 5,000/-, in default to undergo simple imprisonment for
thirty days by the learned Magistrate. The fine amount if realised was
ordered to be given to the complainant as compensation. On appeal by
the accused, the lower appellate court confirmed his conviction, but
modified the sentence to imprisonment till the rising of court and to
pay a compensation of Rs. 1,00,000/- to the complainant, in default, to
undergo simple imprisonment for three months. The accused has now
come up in revision challenging his conviction and sentence.
2. The case of the revision first respondent/complainant as
testified by her as PW1 before the trial court and as detailed in the
Crl.R.P.No.2641/2005 2
complaint in brief is this:
During 1999, revision first respondent/complainant paid
Rs. 1,00,000/- to the husband of the revision petitioner/accused to
arrange a visa for his son Abdul Azeez. The husband of the accused
failed to arrange the visa. The revision petitioner undertook the
liability and to discharge that liability, she issued the cheque Ext.P2
dated July 20, 2001 for Rs. 1,00,000/-. The cheque when presented for
collection was returned dishounoured for want of sufficiency of funds
in the account of the accused in the bank. In spite of notice Ext.P4
dated August 29, 2001 sent by the complainant, the accused did not
repay the amount. Therefore, the complainant filed the complaint
under Section 138 of Negotiable Instruments Act before the trial court.
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. Complainant was examined as PW1 and Exts.P1 to P7
were marked on the side of the complainant. When questioned under
Section 313 of Cr.P.C., the accused denied the entire transaction. DW1
Crl.R.P.No.2641/2005 3
was examined on the side of the accused.
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 him thereunder
and sentenced him as aforesaid. On appeal by the accused, the lower
appellate court confirmed his conviction, but modified the sentence as
mentioned above. The accused has now come up in revision
challenging his conviction and sentence.
5. Heard the counsel for the revision petitioner and the
counsel for the revision first respondent.
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 terms of the complaint
before the trial court. Nothing was brought out during his cross
examination to disbelieve his evidence. Further his evidence is
Crl.R.P.No.2641/2005 4
supported by Exts.P1 to P7.
8. The case of the accused as testified by her as DW1 before
the trial court was that she has not issued the cheque Ext.P2, that
misusing her cheque leaf, her husband might have given a blank signed
cheque to the complainant. As the execution of the cheque Ext.P2 was
admitted by the accused, presumption as envisaged under Section 118
and 139 of Negotiable Instruments Act is available to the complainant.
No evidence was adduced by the accused to rebut the above
presumption. That apart, Ext.P8 is the agreement executed between
the husband of the appellant in favour of PW1, complainant, which
shows that the husband of the accused received Rs. 80,000/- from PW1
to provide a visa for his son Abdul Azeez and that in case of default, he
had agreed to repay the amount to PW1.
9. For all these reasons, I hold that the trial court as well as
the lower appellate court is 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 and
convicting him thereunder. Therefore I confirm the conviction of the
revision petitioner under Section 138 of Negotiable Instruments Act.
Crl.R.P.No.2641/2005 5
Point No.2
10. As regards the sentence, the trial court imposed a sentence
of simple imprisonment for three months and to pay a fine of
Rs. 5,000/- which was modified by the lower appellate court as
imprisonment till the rising of court and to pay a compensation of
Rs. 1,00,000/- in default to undergo simple imprisonment for three
months. As the accused is a lady, I feel that a sentence of fine of
Rs. 1,00,000/- alone would meet the 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 sentence is modified to the effect that she is
sentenced to pay a fine of Rs.1,00,000/- in default to undergo simple
imprisonment for three months. Her bail bonds are cancelled. Time
granted till December 31, 2010 for payment of fine. The fine amount,
if realised, shall be paid to the complainant as compensation.
P.Q.BARKATH ALI
JUDGE
sv.
Crl.R.P.No.2641/2005 6