High Court Kerala High Court

P.K. Rasiyabi vs A.P. Mohammed on 8 October, 2010

Kerala High Court
P.K. Rasiyabi vs A.P. Mohammed on 8 October, 2010
       

  

  

 
 
  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.
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                               Crl.R.P.No.2641 OF 2005
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                    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