Hemalatha Valsan Vs. Johny and State of Kerala,rep.by P.P. - Court Judgment

SooperKanoon Citationsooperkanoon.com/1016268
CourtKerala High Court
Decided OnJul-16-2013
JudgeHONOURABLE MR.JUSTICE K.HARILAL
AppellantHemalatha Valsan
RespondentJohny and State of Kerala,rep.by P.P.
Excerpt:
in the high court of kerala at ernakulam present: the honourable mr.justice k.harilal tuesday, the 16th day of july 2013 25th ashadha, 1935 crl.rev.pet.no. 3383 of 2003 (d) -------------------------------- against the judgment in cra 334/2001 of additional district court (adhoc), thrissur, dated 25 08-2003 against the judgment in st 10807/1998 of munsiff-magistrate court, chalakudy, dated 18 06-2001 revision petitioner/appellant & accused:- --------------------------------------- hemalatha valsan, aged 3 years, w/o.late p.a.valsan and d/o.thachan balan, sreevalsam hoiuse, thiruvathira, kottappuram, thrissur district. by advs.sri.p.gopakumaran nair sri.c.s.dias respondents/respondents/complainant & state:- ------------------------------------------- 1. johny, s/o.antony, kolangadan house, kizhakke chalakudy village, thrissur district.2. state of kerala, represented by the public prosecutor, high court of kerala, ernakulam. r1 by adv. sri.p.vijaya bhanu r1 by adv. smt.p.maya r2 by public prosecutor shri.liju v.stephen. this criminal revision petition having been finally heard on 16-07-2013, the court on the same day passed the following: k. harilal, j.= = = = = = = = = = = = crl.r.p.no.3383 of 2003. = = = = = == = = = = = dated this the 16th july, 2013. order this revision petition is the accused in st.no.10807/1998 on the files of the court of munsiff- magistrate, chalakudy. he was prosecuted for the offence punishable under section 138 of the negotiable instruments act (for short 'the ni act') on a complaint filed by the first respondent herein. after trial, the learned magistrate found the revision petitioner guilty of the offence punishable under section 138 of the ni act and convicted therein. he was sentenced to undergo simple imprisonment for three months and to pay a compensation of rs.27,550/-. aggrieved by the conviction and sentence, the revision petitioner had preferred an appeal before the third additional sessions judge (adhoc), fast track court not i, thrissur. after re-appreciating the evidence, the appellate crl.r.p.no.3383 of 2003. 2 court also confirmed the conviction but modified the sentence. the substantive sentence of simple imprisonment was modified to simple imprisonment for one day till rising of the court and directed to pay a compensation of rs.30,000/- to the complainant/first respondent and in default, to undergo simple imprisonment for two months. this revision petition is filed against the concurrent findings of conviction and modified sentence.2. it is the case of the first respondent that the revision petitioner owed a sum of rs.27,550/- to the complainant and in discharge of the said liability the revision petitioner had issued a cheque for an amount of rs.27,550/- in favour of the first respondent/complainant. when he presented the cheque for encashment, the same was dishonoured for want of sufficient funds. though he caused to issue a lawyer notice demanding the cheque amount, the revision petitioner had neither sent a reply nor paid the cheque amount. thus, he has committed the crl.r.p.no.3383 of 2003. 3 offence punishable under section 138 of the ni act.3. in defence, the revision petitioner contended that she did not owe any money to the first respondent and she did not issue the cheque to the first respondent. it was also contended that ext.p1 was issued as a security in the financial transaction between the complainant and the husband of the revision petitioner.4. to prove the execution and issuance of the cheque, the complainant was examined as pw1 and exts.p1 to p5 were marked. though, the first respondent was subjected to cross examination nothing brought out to disbelieve the evidence of pw1. to prove the defence contention no evidence either oral or documentary had been produced by the revision petitioner. after analysing the evidence of pw1 and the documents ext.p1 to p5 produced in support of the commission of the offence under section 138 of the ni act, the trial court found that the first respondent had successfully proved execution and issuance crl.r.p.no.3383 of 2003. 4 of the cheque and thereby the presumption under section 118(a) and 139 of the ni act would stand in favour of the first respondent. but, the revision petitioner had miserably failed to rebut the presumption under section 118(a) and 139 of the ni act. in the absence of any evidence either to improbabilise the evidence of pw1 or to probabilise the defence contention raised by the first respondent. certainly the defence contention can be probabilised by a cross examination of the complainant. but here, the trial court found that even in cross examination nothing was found suggestive to disbelieve the evidence of pw1. therefore, there is no illegality or impropriety in the impugned judgment under challenge and i do not find any kind of perversity on the appreciation of evidence from which those findings have been arrived.5. the revisional jurisdiction is a paternal jurisdiction to correct the illegality or impropriety in the judgment rendered by the inferior courts. in the absence of crl.r.p.no.3383 of 2003. 5 any illegality, this court is not inclined to invoke the jurisdiction under sections 397 & 401 of the cr.pc.6. coming to the sentence, i find that the sentence imposed on the revision petitioner is just and proper. this revision petition is devoid of merits. consequently, this revision petition is dismissed. sd/- k. harilal, (judge) kvs/- // true copy // pa to judge.
Judgment:

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL TUESDAY, THE 16TH DAY OF JULY 2013 25TH ASHADHA, 1935 Crl.Rev.Pet.No. 3383 of 2003 (D) -------------------------------- AGAINST THE JUDGMENT IN CRA 334/2001 of ADDITIONAL DISTRICT COURT (ADHOC), THRISSUR, DATED 25 08-2003 AGAINST THE JUDGMENT IN ST 10807/1998 of MUNSIFF-MAGISTRATE COURT, CHALAKUDY, DATED 18 06-2001 REVISION PETITIONER/APPELLANT & ACCUSED:- --------------------------------------- HEMALATHA VALSAN, AGED 3 YEARS, W/O.LATE P.A.VALSAN AND D/O.THACHAN BALAN, SREEVALSAM HOIUSE, THIRUVATHIRA, KOTTAPPURAM, THRISSUR DISTRICT. BY ADVS.SRI.P.GOPAKUMARAN NAIR SRI.C.S.DIAS RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:- ------------------------------------------- 1. JOHNY, S/O.ANTONY, KOLANGADAN HOUSE, KIZHAKKE CHALAKUDY VILLAGE, THRISSUR DISTRICT.

2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.P.VIJAYA BHANU R1 BY ADV. SMT.P.MAYA R2 BY PUBLIC PROSECUTOR SHRI.LIJU V.STEPHEN. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HARILAL, J.

= = = = = = = = = = = = Crl.R.P.No.3383 of 2003. = = = = = == = = = = = Dated this the 16th July, 2013. ORDER

This Revision Petition is the accused in ST.No.10807/1998 on the files of the Court of Munsiff- Magistrate, Chalakudy. He was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act (for short 'the NI Act') on a complaint filed by the first respondent herein. After trial, the learned Magistrate found the Revision Petitioner guilty of the offence punishable under Section 138 of the NI Act and convicted therein. He was sentenced to undergo simple imprisonment for three months and to pay a compensation of Rs.27,550/-. Aggrieved by the conviction and sentence, the Revision Petitioner had preferred an appeal before the Third Additional Sessions Judge (Adhoc), Fast Track Court not I, Thrissur. After re-appreciating the evidence, the appellate Crl.R.P.No.3383 of 2003. 2 court also confirmed the conviction but modified the sentence. The substantive sentence of simple imprisonment was modified to simple imprisonment for one day till rising of the court and directed to pay a compensation of Rs.30,000/- to the complainant/first respondent and in default, to undergo simple imprisonment for two months. This Revision Petition is filed against the concurrent findings of conviction and modified sentence.

2. It is the case of the first respondent that the Revision Petitioner owed a sum of Rs.27,550/- to the complainant and in discharge of the said liability the Revision Petitioner had issued a cheque for an amount of Rs.27,550/- in favour of the first respondent/complainant. When he presented the cheque for encashment, the same was dishonoured for want of sufficient funds. Though he caused to issue a lawyer notice demanding the cheque amount, the Revision Petitioner had neither sent a reply nor paid the cheque amount. Thus, he has committed the Crl.R.P.No.3383 of 2003. 3 offence punishable under Section 138 of the NI Act.

3. In defence, the Revision Petitioner contended that she did not owe any money to the first respondent and she did not issue the cheque to the first respondent. It was also contended that Ext.P1 was issued as a security in the financial transaction between the complainant and the husband of the Revision Petitioner.

4. To prove the execution and issuance of the cheque, the complainant was examined as Pw1 and Exts.P1 to P5 were marked. Though, the first respondent was subjected to cross examination nothing brought out to disbelieve the evidence of Pw1. To prove the defence contention no evidence either oral or documentary had been produced by the Revision Petitioner. After analysing the evidence of Pw1 and the documents Ext.P1 to P5 produced in support of the commission of the offence under Section 138 of the NI Act, the trial court found that the first respondent had successfully proved execution and issuance Crl.R.P.No.3383 of 2003. 4 of the cheque and thereby the presumption under Section 118(a) and 139 of the NI Act would stand in favour of the first respondent. But, the Revision Petitioner had miserably failed to rebut the presumption under Section 118(a) and 139 of the NI Act. In the absence of any evidence either to improbabilise the evidence of Pw1 or to probabilise the defence contention raised by the first respondent. Certainly the defence contention can be probabilised by a cross examination of the complainant. But here, the trial court found that even in cross examination nothing was found suggestive to disbelieve the evidence of Pw1. Therefore, there is no illegality or impropriety in the impugned judgment under challenge and I do not find any kind of perversity on the appreciation of evidence from which those findings have been arrived.

5. The revisional jurisdiction is a paternal jurisdiction to correct the illegality or impropriety in the judgment rendered by the inferior courts. In the absence of Crl.R.P.No.3383 of 2003. 5 any illegality, this Court is not inclined to invoke the jurisdiction under Sections 397 & 401 of the Cr.PC.

6. Coming to the sentence, I find that the sentence imposed on the Revision Petitioner is just and proper. This Revision Petition is devoid of merits. Consequently, this Revision Petition is dismissed. Sd/- K. HARILAL, (JUDGE) Kvs/- // true copy // PA TO JUDGE.