IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 3565 of 2006()
1. P.S.SUBHA, D/O. SANKUNNI,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. K.K.MURALEEDHARAN NAIR, S/O. KUTTAPPAN
For Petitioner :SRI.SANTHAN V.NAIR
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :18/10/2006
O R D E R
R. BASANT, J.
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CRL.R.P.NO.3565 OF 2006
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Dated this the 18th day of October, 2006
ORDER
This revision petition is directed against a concurrent
verdict of guilty, conviction and sentence in a prosecution
under Sec.138 of the N.I. Act.
2. The cheque is for an amount of Rs.2,46,500/-. It bears
the date 1/8/1999. The petitioner, after indulgent modification
of the sentence by the appellate court, now faces a sentence of
imprisonment till rising of court and to pay the actual cheque
amount as compensation and in default, to undergo simple
imprisonment for a period of three months.
3. Signature in the cheque is admitted. Notice of
demand succeeded in evoking Ext.P5 reply in which the
transaction and the liability are not disputed. There was a plea
of partial discharge. There was a further contention that the
actual transaction was for an amount of Rs.1,45,000/- and that
a substantial portion of that amount had already been paid and
discharged. In Ext.P5 reply, the petitioner had only prayed for
further time to discharge the liability.
CRL.R.P.NO.3565 OF 2006 2
4. The complainant examined himself as P.W.1. An official
of the Post Office where the S.B. Account was maintained was
examined as P.W.2. Exts.P1 to P6 were marked. The accused
did not adduce any evidence – oral or documentary.
5. In the course of trial, an attempt was made to advance a
contention that the cheque was not issued for the due discharge
of any legally enforceable debt/liability; but was only handed over
by the petitioner to her husband for production before the
complainant who insisted on a signed blank cheque as security
when the loan transaction was entered into.
6. The courts below came to the conclusion that the
complainant has succeeded in establishing all the ingredients of
the offence punishable under Sec.138 of the N.I. Act.
Accordingly, the courts below proceeded to pass the impugned
concurrent judgments.
7. Called upon to explain the nature of the challenge which
the petitioner wants to mount against the impugned concurrent
judgments, the learned counsel for the petitioner reiterates the
contentions that were raised before the courts below. He further
prays that, at any rate, a reasonable time may be granted to the
petitioner – a woman, to raise the amount and avoid the default
CRL.R.P.NO.3565 OF 2006 3
sentence. She was a Government employee, it is urged.
8. I find no substance in the contentions raised on merits.
The plea for absolution from liability runs counter to the stand
taken in Ext.P5 reply notice. Though there is a contention that
the cheque was handed over as a blank signed cheque and the
substantial portion of the admitted liability has been discharged,
no satisfactory attempt has been made to substantiate that
contention. In these circumstances, the courts below, according
to me, committed no error in accepting and acting upon the
evidence of P.W.1 about the circumstances under which Ext.P1
cheque was handed over by the petitioner to the complainant.
The theory of partial discharge is not substantiated at all. The
execution and handing over of the cheque is satisfactorily
established by the evidence of P.W.1. The unacceptable stand
taken by the petitioner is also one circumstance which assures
the court of the acceptability of the version of P.W.1. In these
circumstances, the contention on merit is found to be without any
substance.
9. Leniency and indulgence to the extent possible have
already been shown to the petitioner by the courts below. I am
satisfied that there is no space for any further leniency. I do not
CRL.R.P.NO.3565 OF 2006 4
find much merit in the prayer for any long further period of time
to raise the amount and avoid the default sentence. However, I
am satisfied that time can be granted to the petitioner till
30/12/2006 to pay the amount and avoid the default sentence.
10. In the result, this revision petition is dismissed; but
with the observation that the impugned sentence shall not be
executed prior to 30/12/2006. The petitioner shall appear before
the learned Magistrate on that day. If the petitioner does not
appear before the learned Magistrate as directed, the learned
Magistrate shall thereafter proceed to execute the impugned
sentence.
Sd/-
(R. BASANT, JUDGE)
Nan/
//true copy//
P.S. to Judge
CRL.R.P.NO.3565 OF 2006 5