IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2200 of 2009()
1. T.V.ALIAMMA, PEON, KAYANNA GRAMA
... Petitioner
Vs
1. C.M.BALAN, S/O. ARIYAN, THIYYARKANDI
... Respondent
2. STATE OF KERALA, REP. BY PUBLIC
For Petitioner :SMT.P.RANI DIOTHIMA
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :08/07/2009
O R D E R
THOMAS P.JOSEPH, J.
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CRL. R.P. NO.2200 of 2009
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Dated this the 8th day of July, 2009
O R D E R
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Notice to respondent No.1 is dispensed with in view of the order
I am proposing to pass and which is not prejudicial to him. Public
Prosecutor took notice for respondent No.2.
2. This revision is in challenge of judgment of learned
Additional Sessions Judge (Fast-rack (Adhoc-II), Kozhikode in Crl.
Appeal No.778 of 2007 confirming conviction and sentence of
petitioner for offence punishable under Section 138 of the Negotiable
Instruments Act.
3. Case of respondent No.1 is that in June, 2006 petitioner
borrowed Rs.7,500/- from him and for repayment of that amount
issued Ext.P1, cheque dated 16.9.2006. That cheque was dishonoured
for insufficiency of funds. Dishonour of the cheque for the said reason
is proved by Exts.P2 and P3. Respondent No.1 issued notice to the
petitioner intimating dishonour and demanding payment which is
proved by Exts.P4, P4(a) and P5. She sent Ext.P6, reply. According
to the petitioner, when she was in need of money she approached
one Devi for help. Since Devi was not possessed of money she
approached respondent No.1 as instructed by Devi. She borrowed
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Rs.5,000/- from respondent No.1 and gave signed blank cheque as
security. She discharged the liability towards respondent No.1. But
the blank cheque leaf is misused. Petitioner gave evidence in the
above line as D.W.1. Courts below were not inclined to believe the
evidence of petitioner, found her guilty and convicted. That finding is
under challenge.
4. It is not disputed that Ext.P1 contains the signature of
petitioner and that the cheque is drawn on the account maintained by
her. Petitioner also admits that she had borrowed money from
respondent No.1 and in that transaction she gave the cheque to
respondent No.1. That cheque is produced by respondent No.1. There
is no reliable evidence to show that the transaction was only
regarding Rs.5,000/- or that petitioner repaid any amount to
respondent No.1.
5. So far as negotiable instrument is concerned when
respondent No.1 produced the same from his custody which created
liability on petitioner, she had to show that no amount was due from
her. She has not adduced reliable evidence. Courts below have
considered the evidence and found in favour of due execution of the
cheque. There is no reason to interfere with that finding or the
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consequent conviction.
6. Learned magistrate sentenced petitioner to undergo simple
imprisonment till rising of the court and directed her to pay Rs.7,500/-
as compensation. In default of payment, sentence of simple
imprisonment for three months also was provided. Appellate court did
not interfere with the sentence, direction for payment of compensation
or the default sentence. Having regard to the nature of offence and
amount involved there is no reason to interfere with the sentence,
direction for payment of compensation and the default sentence at the
instance of petitioner.
7. Learned counsel requested three months’ time to deposit
compensation in the trial court. Counsel submits that petitioner is
unable to raise the amount immediately. Having regard to the
circumstances stated by learned counsel I am inclined to grant two
months’ time to the petitioner to deposit compensation in the trial
court.
Resultantly, this revision fails. It is dismissed. Petitioner is
granted two months’ time from this day to deposit compensation in
the trial court as ordered by the learned magistrate. It is made clear
that it shall be sufficient compliance with the direction for deposit of
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compensation if petitioner paid compensation to respondent No.1
through her counsel in the trial court and respondent No.1 filed a
statement in the trial court through his counsel acknowledging receipt
of the compensation within the aforesaid period.
Petitioner shall appear in the trial court on 10.9.2009 to receive
the sentence.
THOMAS P.JOSEPH, JUDGE.
vsv