IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS WEDNESDAY, THE 13^TH DAY OF SEPTEMBER 2023 / 22ND BHADRA, 1945 CRL.REV.PET NO. 1988 OF 2011 AGAINST THE ORDER/JUDGMENT ST 4088/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,ATTINGAL CRA 279/2009 OF DISTRICT COURT & SESSIONS COURT, THIRUVANANTHAPURAM REVISION PETITIONER/S:

SIVAKUMARI PULIMOOTTIL VEEDU, NEAR GOVT.AYURVEDA HOSPITAL,, CHERUKUNNAM DESOM, VARKALA VILLAGE,, THIRUVANANTHAPURAM BY ADV SRI.LATHEESH SEBASTIAN RESPONDENT/S:

1 STATE OF KERALA REPRESENTED BY THE DIRECTOR GENERAL OF PROSECUTION,, HIGH COURT OF KERALA, ERNAKULAM.

2 KUTTAPPAN NAIR, S/O.JANARDHANAN PILLAI R.S.MANDIRAM, VELLOOR, MURUKKUMPUZHA,, THIRUVANANTHAPURAM, REPRESENTED BY VASANTHAKUMARI, D/O.KUTTAPPAN NAIR,, DO...DO...DO.... 695302.

BY ADVS.

SRI.T.H.ABDUL AZEEZ SRI.M.CHANDRAN Smt. Pushpalatha M.K, PUBLIC PROSECUTOR - R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

C.S DIAS,J.

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Crl R.P No. 1988 of 2011 -----------------------------

Dated this the 13th day of September, 2023

ORDER

The revision petition calls in question the concurrent judgments of conviction and sentence imposed by the Court of the Judicial First Class-II, Attingal (Trial Court) in ST No.4088/2005, and the Court of the Additional Sessions Judge (Fast Track Court-I), Thiruvananthapuram (Appellate Court) in Crl.A No.279/2009 holding the revision petitioner guilty for an offence under Sec.138 of the Negotiable Instruments Act ( in short, ‘N.I Act’). The revision petitioner was the accused and the second respondent was the complainant before the Trial Court.

2. The compendious background facts for the determination of the revision petitioner are as follows:

(i) The revision petitioner borrowed Rs.5,00,000/-

from the second respondent and issued Ext P1 cheque dated 5.5.2005. When the second respondent presented the cheque for collection, the same was returned by Ext P2 memo for ‘funds insufficient’. The second respondent had issued Ext P4 lawyer notice to the revision petitioner, which was returned with an endorsement ‘unclaimed’. The revision petitioner failed to pay the amount demanded in Ext P4 lawyer notice and, thereby, committed the offence under Sec.138 of the N.I Act.

(ii) The Trial Court took cognizance of the offence and issued summons to the revision petitioner. On completion of the statutory procedural formalities contemplated under the Code of Criminal Procedure ( in short, ‘Cr.P.C’) , the complaint was posted for trial.

(iii) In the interregnum, the complainant died. His daughter (PW1) filed CMP No.3123/2008 seeking permission to conduct the prosecution on behalf of the deceased complainant, being the legal heir of the deceased. The Trial Court allowed the said application and permitted PW1 to prosecute the complaint.

(iv) PW1 proved Exts P1 to P8 in evidence. The revision petitioner and a witness were examined as DWs 1 and 2, and Ext D1 was marked. The statement of the revision petitioner was recorded under Sec.313 Cr.P.C.

(v) The Trial Court, after analysing the evidence and materials on record, by its judgment dated 6.4.2009, convicted the revision petitioner and sentenced her to undergo simple imprisonment for a period of one year and to pay compensation of Rs.5,00,000/- to PW1 under Sec.357 Cr.P.C, and in default to undergo simple imprisonment for a further period of three months.

(vi) Confronted with the said judgment, the revision petitioner filed CrlA No.279/2009 before the Appellate Court. The Appellate Court, after re- appreciating the materials on record, by the impugned judgment confirmed the conviction and sentence passed by the Trial Court.

(vii) Aggrieved by the concurrent judgments, the present revision petition is filed.

3. Heard; Sri.Latheesh Sebastian, the learned counsel appearing for the revision petitioner, the learned Public Prosecutor appearing for the first respondent and Sri.T.H.Abdul