IMPORTANT POINT
Court below imposed imprisonment till rising of court and imposed cheque amount as fine with default sentence, maximum leniency in imposing sentence as well.

K.Ramakrishnan, J.—The accused in CC.No.79/2006 on the file of the Judicial First Class Magistrate Court-I, Attingal, is the revision petitioner herein.

2. The case was taken on file on the basis of a private complaint filed by the complainant against the revision petitioner under Section 138 of the Negotiable Instruments Act (hereinafter called the Act). The case of the complainant in the complaint was that the revision petitioner borrowed a sum of Rs.2 lakhs and in discharge of her liability, she issued Ext.P1 cheque dated 01.10.2005. He presented the cheque for collection and the same was dishonoured for the reason funds insufficient vide Ext.P2 dishonour memo dated.06.12.2005 and that was intimated to the complainant by his banker vide Ext.P3 intimation letter. Ext.P4 is the notice issued by the complainant vide Ext.P5 postal receipt intimating the dishonour and demanding payment of the amount and the same was received by the revision petitioner evidenced by Ext.P6 postal acknowledgement. She had not paid the amount. So, she had committed the offence punishable under Section 138 of the Act. Hence the complaint.

3. When the revision petitioner appeared before the court below, the particulars of offence were read over and explained to her and she pleaded not guilty. In order to prove the case of the complainant, the complainant himself was examined as PW1 and one witness was examined as PW2 to prove the transaction and Exts.P1 to P6 were marked on his side. After closure of the complainant’s evidence, the revision petitioner was questioned under Section 313 of the Code of Criminal Procedure (hereinafter called the Code) and she denied all the incriminating circumstances brought against her in the complainant’s evidence and she had further stated that while she was in abroad with her husband, a blank signed cheque was handed over to her mother-in-law for the purpose of payment of electricity charges and for maintenance of her house and subsequently, her mother-in-law and brother-in-law had handedover the cheque to the complainant and misusing the cheque, the present complaint has been filed. Exts.D1 and D2 were marked through PW1 on her side in defence. No other evidence was adduced on her side in defence. After considering the evidence on record, the trial court found the revision petitioner guilty under Section 138 of the Act and convicted her thereunder and sentenced her to undergo simple imprisonment for 6 months and also to pay fine of Rs..2 lakhs in default to undergo simple imprisonment for 3 months more. It is further ordered that if the fine amount is realised, the same to be paid to the complainant as compensation under Section 357 (1) (b) of the Code. Aggrieved by the same, the revision petitioner filed Crl.Appeal No.295/2011 before the Sessions Court, Thiruvananthapuram, which was made over to the First Additional Sessions Court, Thiruvananthapuram for disposal. The learned Additional Sessions Judge by the impugned judgement allowed the appeal in part confirming the order of conviction and sentence of fine with further direction to pay the fine as compensation to the complainant with default sentence of two months simple imprisonment imposed by the court below but reduced the substantive imprisonment to till rising of court. This is being challenged by the revision petitioner by filing this revision petition before this court.

4. When the revision came up for hearing for admission, the counsel appearing for the revision petitioner confines the argument regarding the issuance of notice whether it is within time or not so as to challenge the maintainability of the complaint itself under Section 138 of the Act. Considering this fact, this court felt that the revision petition can be disposed of at the admission stage itself after hearing the learned counsel appearing for the revision petitioner and the learned Public Prosecutor appearing for the first respondent and dispensing with notice to the second respondent.

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