IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI MONDAY, THE 09TH DAY OF DECEMBER 2019 / 18TH AGRAHAYANA, 1941 Crl.Rev.Pet.No.1264 OF 2019 AGAINST THE JUDGMENT IN CRA 150/2018 DATED 31-10-2018 OF ADDITIONAL DISTRICT COURT KOZHIKODE-III AGAINST THE JUDGMENT IN CC 753/2016 DATED 26-03-2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS -V,KOZHIKODE REVISION PETITIONER/APPELLANT/ACCUSED:

VIJUNA.V.K AGED 37 YEARS W/O. JISHITH, R.S.A/10/454A, SAI KRIPA, NEAR THALAPPAN VISHNU TEMPLE, OLAVANNA P.O, KOZHIKODE-673 025 BY ADVS.

SRI.K.M.FIROZ SMT.M.SHAJNA RESPONDENTS/COMPLAINANT:

1 MITHUN.K AGED 30, S/O.LEELA KRISHNAN, KUZHIPPILLI HOUSE, KOZHIKKODANKUNNU, OLAVANNA P.O, KOZHIKODE-673

025

2 STATE OF KERALA REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM – 682 018 R1 BY ADV.SMT.K.K.PREETHA R1 BY ADV.SRI.R.K.PRASANTH SRI C N PRABHAKARAN-SR PP THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05-12-2019, THE COURT ON 09-12-2019 PASSED THE FOLLOWING:

R.NARAYANA PISHARADI, J ************************

Crl.R.P.No.1264 of 2019 ---------------------------------------------- Dated this the 9th day of December, 2019

O R D E R

The revision petitioner is the accused in the case C.C.No.753/2016 on the file of the Court of the Judicial First Class Magistrate-V, Kozhikode.

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 and sentenced her to undergo simple imprisonment for a period of three months and also directed her to pay an amount of Rs.3,50,000/- 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.150/2018 before the Court of Session, Kozhikode challenging the conviction entered against and the sentence imposed on her by the trial court. The appellate court confirmed the conviction of the petitioner under Section 138 of the Act but modified the sentence of imprisonment to imprisonment till the rising of the court and imposed a fine of Rs.3,50,000/- on the petitioner and in default of payment of fine, to undergo simple imprisonment for a period of three months. The petitioner challenges the concurrent verdicts of guilty and conviction passed against her by the courts below and the sentence imposed on her by the appellate court.

4. Heard learned counsel for the petitioner and also the first respondent.

5. The case of the complainant is as follows: The complainant and the accused were known to each other. The husband of the accused had received a total amount of Rs.4,50,000/- from the complainant in instalments on the promise that he would sell the Scorpio car in his possession to the complainant, after repairing the same. However, the husband of the accused could not sell the car to the complainant as promised by him. The husband of the accused returned an amount of Rs.1,00,000/- to the complainant. The accused undertook the liability of the husband for the balance amount of Rs.3,50,000/- and she issued a cheque dated 25.11.2015 for that amount to the complainant in discharge of the liability. An agreement dated 05.11.2015 had also been executed in relation to the transaction. 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 Ext.P3 lawyer notice dated 15.03.2016 in the address of the accused but it was returned as 'unclaimed'. The accused did not pay the amount.

6. During the trial of the case, PW1 to PW3 were examined and Exts.P1 to P6 documents were marked on the side of the complainant. DW1 was examined on the side of the accused.

7. When the complainant was examined as PW1, he gave evidence in tune with the case set up by him in the complaint. He gave evidence that, towards the amount of Rs.3,50,000/- due from h