RAJESWARY v. USHA POULOSE and STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 29TH DAY OF JANUARY 2020 / 9TH MAGHA, 1941** **Crl.Rev.Pet.No.41 OF 2020** **AGAINST THE JUDGMENT IN CRA 148/2017 DATED 14-10-2019 OF ADDITIONAL SESSIONS COURT V, ERNAKULAM** **AGAINST THE JUDGMENT IN CC 340/2014 DATED 17-04-2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS -III,ERNAKULAM** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **RAJESWARY, AGED 55 YEARS** **W/O.DEEPAN, C-27 FACT TOWNSHIP, UDYOGAMANDAL P.O., ELOOR, COCHIN-683501, ERNAKULAM.** ## **BY ADV. SRI.K.J.JOSEPH (ERNAKULAM)** ## **RESPONDENTS/COMPLAINANT:** - **1 USHA POULOSE, W/O.POULOSE, IKKARASSERY, MANDIRAM ROAD, AYYAPPANKAVU, COCHIN-682018, ERNAKULAM.** - **2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM, COCHIN-31.** ## **SRI C K PRASAD-PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27.01.2020, THE COURT ON 29.01.2020 PASSED THE FOLLOWING:** Crl.R.P.No.41/2020 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.41 of 2020 ----------------------------------------------Dated this the 29[th] day of January, 2020 ## **O R D E R** This revision petition is filed by the accused in the case C.C.No.340/2014 on the file of the Court of the Judicial First Class Magistrate-III, Ernakulam. 2. The trial court found the petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') and convicted her thereunder. The trial court sentenced her to undergo simple imprisonment for a period of one year and also directed her to pay an amount of Rs.7,17,000/- as compensation to the complainant and in default of payment of compensation, to undergo simple imprisonment for a period of three months. 3. The petitioner filed Crl.A.No.148/2017 before the Court of Session, Ernakulam challenging the order of conviction and sentence passed against her by the trial court. The appellate Crl.R.P.No.41/2020 3 court confirmed the conviction as well as the sentence and dismissed the appeal. 4. Aggrieved by the concurrent findings of guilty, conviction and sentence made against her by the courts below, the accused has filed this revision petition. 5. Heard learned counsel for the revision petitioner. 6. The case of the complainant is as follows: The complainant and the accused were known to each other for many years. The accused had borrowed an amount of Rs.7,17,000/from the complainant. In discharge of that liability, the accused issued a cheque dated 03.02.2014 for Rs.7,17,000/- in favour of the complainant. When the complainant presented the cheque in the bank, it was returned unpaid for the reason that there was no sufficient amount in the account of the accused. The complainant sent a lawyer notice to the accused demanding payment of the amount of the cheque. The accused received the notice. She sent a reply. She did not pay the amount of the cheque. 7. During the trial of the case, the complainant got Crl.R.P.No.41/2020 4 herself examined as PW1 and Exts.P1 to P5 documents were marked on her side. No oral evidence was adduced by the accused but Ext.D1 document was marked on her side. 8. When examined as PW1, the complainant gave evidence that she and the accused were friends and neighbours and out of their close relationship, she gave an amount of Rs.7,17,000/- to the accused as loan. PW1 deposed that she bid a chitty and got an amount of Rs.5,17,000/- and that she mortgaged the ground floor of her residential house and obtained an amount of Rs.2,00,000/- and thus raised the money. 9. PW1 gave evidence that the accused filled up the cheque by herself in her presence and signed it and gave it to her. No contra evidence is adduced by the accused. She has no case that Ext.P1 cheque does not bear her signature. She did not raise a plea that the entries in the cheque are not in her handwriting. 10. The plea of the accused was that she had issued the cheque in favour of the complainant as a security in the transaction between the complainant and one Leo and that she Crl.R.P.No.41/2020 5 had entrusted the cheque with Leo. No evidence was adduced by the accused to prove this plea. 11. The evidence of PW1 proves execution of Ext.P1 cheque by the accused. Once execution of the cheque by the accused is proved, the burden is upon the accused to rebut the presumption under Section 139 of the Act. The accused failed to rebut the presumption in any manner. 12. The accused had taken a plea before the trial court that the date in the cheque is written in a different ink and that the date in the cheque was inserted by the complainant and it amounted to material alteration of the cheque. The trial court rightly relied upon the decision of this Court in **Bhaskaran Chandrasekharan v. Radhakrishnan (1998 (1) KLT 881)** and negatived this plea. 13. Yet another plea taken by the accused before the trial court was that the complaint in the case did not disclose the particulars of the transaction between her and the complainant. The date or year of the transaction was not mentioned in the complaint. Absence of such details in the complaint does not Crl.R.P.No.41/2020 6 affect the maintainability of the complaint. Absence of details of original transaction in the complaint, by itself, is not sufficient to reject the case of the complainant. In **Shree Daneshwari Traders v. Sanjay Jain : AIR 2019 SC 4003** , the Supreme Court has held as follows: _“The courts below disbelieved the evidence of the complainant on the ground that there are no averments in the complaint that the commodities were sold for cash and that the rice bags were sold on credit and the cheques were issued for the goods sold on credit. Though the complaint contains no specific averments that the cheques were issued for the purchase made on credit, in his evidence, PW-1 clearly stated that the cheques were issued for the commodities purchased on credit. The courts below erred in brushing aside the - evidence of PW 1 on the ground that there were no averments in the complaint as to the purchases made by cash and purchase. The courts below also erred in not raising the statutory presumption under Section 139 of the Act that the complainant received the cheques to discharge the debt or other liability in whole or in part”._ (emphasis supplied). Crl.R.P.No.41/2020 7 ## 14. The complainant need not prove the debt as in a suit for recovery of money (See **Uttam Ram v. Devinder Singh : (2019) 10 SCC 287)** . 15. The courts below have appreciated the evidence and made concurrent findings. I find no illegality, impropriety or perversity in the appreciation of evidence and the findings made by the courts below. Ordinarily, in revisional jurisdiction, it would not be appropriate for this Court to reappreciate the evidence and come to its own conclusion, when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of this Court which would otherwise tantamount to gross miscarriage of justice. The revisional court is not meant to act as an appellate court. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the High Court Crl.R.P.No.41/2020 8 shall not interfere with such finding or decision in exercise of its revisional jurisdiction (See **Kishan Rao v. Shankargouda : AIR 2018 SC 3173** ). Conviction of the petitioner/accused for the offence under Section 138 of the Act is only to be confirmed. 16. The trial court has sentenced the petitioner/accused to undergo simple imprisonment for a period of one year. The appellate court did not modify the sentence. Considering the facts and circumstances of the case, I find that substantive sentence of imprisonment for any term is not required to be imposed on the petitioner/accused. The sentence of imprisonment imposed on the petitioner/accused is to be set aside. It is only necessary to impose a sentence of fine on the petitioner/accused with a direction to pay it as compensation to the complainant. 17. Consequently, the revision petition is allowed in part. Conviction of the petitioner/accused by the trial court for the offence under Section 138 of the Act, which stands affirmed by the appellate court, is confirmed. The sentence of simple imprisonment for a period of one year imposed on the Crl.R.P.No.41/2020 9 petitioner/accused by the trial court, which stands affirmed by the appellate court, is set aside. In supersession of the sentence imposed on the petitioner/accused by the courts below, she is sentenced to pay a fine of Rs.7,17,000/- (Rupees seven lakhs seventeen thousand only) and in default of payment of fine, to undergo simple imprisonment for a period of three months. If the fine amount is paid, it shall be given as compensation to the complainant. The petitioner/accused is granted a period of six months from today to remit the amount of fine in the trial court. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr True Copy PS to Judge