Kerala High Court
Sivakumari vs State Of Kerala on 13 September, 2023
Author: C.S Dias
Bench: C.S.Dias
1
Crl R.P No. 1988 of 2011
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 13TH 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:
2
Crl R.P No. 1988 of 2011
C.S DIAS,J.
---------------------------
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. 3 Crl R.P No. 1988 of 2011
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 4 Crl R.P No. 1988 of 2011 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.
5Crl R.P No. 1988 of 2011
(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.
6Crl R.P No. 1988 of 2011
(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 Azeez, the learned counsel appearing for the second respondent.
4. Sri.Latheesh Sebastian argued that the courts below have gone wrong in convicting and sentencing the revision petitioner. The revision petitioner had not borrowed any amount from the second respondent, as alleged in the complaint. The revision petitioner's husband - Ramachandran Pillai (DW2) - had borrowed an amount of Rs.25,000/- from Thankappa Kurup - the father-in-law of PW1. The said person was a money 7 Crl R.P No. 1988 of 2011 lender who demanded security blank cheques. Accordingly, DW2 issued two cheques of DW1, which were used by Thankappa Kurup. Actually, Thankappa Kurup had filed ST No.3304/2003 before the Judicial First Class Magistrate Court, Varkala, against the revision petitioner, which ultimately ended in an acquittal, by Ext.D1 judgment passed by the Appellate Court. Thereafter, Thankappa Kurup entrusted the second cheque to the deceased complainant, who filed the present complaint. There is no legally enforceable debt payable by the revision petitioner to the deceased complainant. Similarly, PW1 is ignorant of the alleged transaction. She has falsely testified that she is aware of the transaction and that Ext.P1 cheque was issued in her presence. The oral testimony of PW1 is concocted 8 Crl R.P No. 1988 of 2011 and false. Hence, the impugned judgments passed by the courts below may be set aside, and the revision petition may be allowed. Lastly, the learned counsel argued that the sentence of imprisonment imposed by the courts below is excessive and disproportionate for an offence under Section 138 of the N.I.Act. He also contended that the deceased complainant is armed with Ext.P8 ex-parte decree passed by the Civil Court, which can be executed. Therefore, the direction to pay compensation is also unjustifiable.
5. Sri.T.H.Abdul Azeez defended the impugned judgments and argued that there is absolutely no merit in the revision petition. The courts below have rightly appreciated the oral testimonies of the witnesses and have concluded that Ext.P1 cheque was issued 9 Crl R.P No. 1988 of 2011 towards a legally enforceable debt. This Court may not interfere with the concurrent convictions and sentences by exercising its extra-ordinary revisional power. Therefore, the revision petition may be dismissed.
6. Is there any illegality, impropriety or irregularity in the judgments of the courts below?
7. Before I delve into the legality and correctness of the impugned judgments, this Court reminds itself of the nature of its revisional jurisdiction under Secs.397 to 401 of the Cr.P.C.
8. It is well settled in a host of judicial pronouncements that the revisional power of this Court is to be sparingly exercised and is in the nature of supervisory jurisdiction to correct the miscarriage of justice, if any is found. The revisional power cannot 10 Crl R.P No. 1988 of 2011 be equated with Appellate/Second Appellate power. Even if a different view is possible, the revisional Court shall not substitute the view taken by the Trial/Appellate Court, unless and until there is patent illegality, which is shocking to the conscience of the Court.
9. In Sanjaysinh Ramrao Chavan vs Dattatray Gulabrao Phalke & Anr [(2015) 3 SCC 123], the Hon'ble Supreme Court has succinctly laid down the scope and powers under Secs.397 to 401 of the Cr.P.C. It is apposite to extract the revisional declaration of law, which reads as follows:
"14. In the case before us, the learned Magistrate went through the entire records of the case, not limiting to the report filed by the police and has passed a reasoned order holding that it is not a fit case to take cognizance for the purpose of issuing process to the appellant. Unless the order 11 Crl R.P No. 1988 of 2011 passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. 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 courts may not interfere with decision in exercise of their revisional jurisdiction."
10. Coming back to the facts of the instant case.
11. The cardinal ground of attack by the revision petitioner is that there was no monetary transaction between her and the deceased complainant. She 12 Crl R.P No. 1988 of 2011 asserted that Ext P1 cheque was issued to the father-in- law of PW1, who in turn entrusted the same to the deceased complainant, i.e., the father of PW1, who has filed the false complaint in order to wreak vengeance on the revision petitioner because the complaint filed by Thankappa Kurup had entailed in acquittal of the revision petitioner.
12. Indisputably, the revision petitioner has not disputed the execution of a cheque. It is her case that her husband - DW2 - had entrusted the cheque to Thankappa Kurup, who in turn handed over the same to the deceased complainant.
13. A negotiable instrument, which includes a cheque carries the presumption of consideration under 13 Crl R.P No. 1988 of 2011 Secs.118(a) and 139 of the N.I Act. It is profitable to extract the said relevant provisions:
"118. Presumptions as to negotiable instruments - Until the contrary is proved, the following presumptions shall be made;-
(a) of consideration-that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
139. Presumption in favour of holder. --It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in section 138, for the discharge, in whole or in part, of any debt or other liability.
14. In Kumar Exports vs Sharma Carpets [2009 (1) KLT 197 (SC)], the Hon'ble Supreme Court analysed the above provisions and held thus: 14 Crl R.P No. 1988 of 2011
"9. In order to determine the question whether offence punishable under Section 138 of the Act is made out against the appellant, it will be necessary to examine the scope and ambit of presumptions to be raised as envisaged by the provisions of Sections 118 and 139 of the Act. In a suit to enforce a simple contract, the plaintiff has to aver in his pleading that it was made for good consideration and must substantiate it by evidence. But to this rule, the negotiable instruments are an exception. In a significant departure from the general rule applicable to contracts, Section 118 of the Act provides certain presumptions to be raised. This Section lays down some special rules of evidence relating to presumptions. The reason for these presumptions is that, negotiable instrument passes from hand to hand on endorsement and it would make trading very difficult and negotiability of the instrument impossible, unless certain presumptions are made. The presumption, therefore, is a matter of principle to facilitate negotiability as well as trade. Section 118 of the Act provides presumptions to be raised until the contrary is proved (i) as to consideration, (ii) as to date of instrument, (iii) as to time of acceptance, (iv) as to time of transfer, (v) as to order of endorsements,(vi) as to appropriate stamp and (vii) as to holder being a holder in due course. Section 139 of the Act provides that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. Presumptions are devices by use of which the courts are enabled and entitled to pronounce on an issue notwithstanding that there is no evidence or insufficient evidence. Under the Indian Evidence Act all presumptions must come under one or the other class of the three classes mentioned in the Act, namely, (1) "may presume" (rebuttable), (2) "shall presume" (rebuttable) and (3) "conclusive presumptions" (irrebuttable). The term `presumption' is used to 15 Crl R.P No. 1988 of 2011 designate an inference, affirmative or disaffirmative of the existence a fact, conveniently called the "presumed fact" drawn by a judicial tribunal, by a process of probable reasoning from some matter of fact, either judicially noticed or admitted or established by legal evidence to the satisfaction of the tribunal.
Presumption literally means "taking as true without examination or proof". Section 4 of the Evidence Act inter-alia defines the words `may presume' and `shall presume as follows: -
"(a) `may presume' - Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved or may call for proof of it.
(b) `shall presume' - Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved."
In the former case the Court has an option to raise the presumption or not, but in the latter case, the Court must necessarily raise the presumption. If in a case the Court has an option to raise the presumption and raises the presumption, the distinction between the two categories of presumptions ceases and the fact is presumed, unless and until it is disproved.
10. Section 118 of the Act inter alia directs that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the Act stipulates that unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability. Applying the definition of the word `proved' in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act a presumption will have to 16 Crl R.P No. 1988 of 2011 be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges the burden to prove that the instrument, say a note, was executed by the accused, the rules of presumptions under Sections 118 and 139 of the Act help him shift the burden on the accused. The presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists.
11. The use of the phrase "until the contrary is proved"
in Section 118 of the Act and use of the words "unless the contrary is proved" in Section 139 of the Act read with definitions of "may presume" and "shall presume" as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in 17 Crl R.P No. 1988 of 2011 a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act. The accused has also an option to prove the non-existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the 18 Crl R.P No. 1988 of 2011 trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue.
15. A three-Judge Bench of the Hon'ble Supreme Court in Rangappa vs. Sri.Mohan [2010 KHC 4325], while dealing with Sec.139 of the N.I Act has conceptualised the doctrine of 'reverse onus', by holding thus:
" 18. In light of these extracts, we are in agreement with the respondent - claimant that the presumption mandated by S.139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. S.139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While S.138 of the Act specifies a strong criminal remedy in relation to the dishonour of 19 Crl R.P No. 1988 of 2011 cheques, the rebuttable presumption under S.139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by S.138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused / defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under S.139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his / her own. 15. Coming back to the facts in the present case, we are in agreement with the High Court's view that the accused did not raise a probable defence. As noted earlier, the defence of the loss of a blank cheque was taken up belatedly and the accused had mentioned a different date in the 'stop payment' instructions to his bank. Furthermore, the instructions to 'stop payment' had not even mentioned that the cheque had been lost. A perusal of the trial record also shows that the accused appeared to be aware of the fact that the cheque was with the complainant. Furthermore, the very fact that the accused had failed to reply to the statutory notice under S.138 of the Act leads to the inference that there was merit in the complainant's version. Apart from not raising a probable defence, the appellant - accused was not able to contest the existence of a legally enforceable debt or liability. The fact that the accused had made regular payments to the complainant in relation to the construction of his house does not preclude the possibility of the complainant having spent his own money for the same purpose. As per the record of the case, there was a slight discrepancy in the complainant's version, in so far as it was not clear whether the accused had asked for a 20 Crl R.P No. 1988 of 2011 hand loan to meet the construction - related expenses or whether the complainant had incurred the said expenditure over a period of time. Either way, the complaint discloses the prima facie existence of a legally enforceable debt or liability since the complainant has maintained that his money was used for the construction - expenses. Since the accused did admit that the signature on the cheque was his, the statutory presumption comes into play and the same has not been rebutted even with regard to the materials submitted by the complainant.
16. Recently, a three-Judge Bench of the Hon'ble Supreme Court in Kalamani Tex and Anr vs. P. Balasubramanian [2021 (2) KHC 517] has reiterated the legal position and doctrine of the reverse onus. It is apposite to extract the relevant paragraphs, which declare the law on the point in the following legal terms:
"14. Adverting to the case in hand, we find on a plain reading of its judgment that the trial Court completely overlooked the provisions and failed to appreciate the statutory presumption drawn under Section 118 and Section 139 of NIA. The Statute mandates that once the signature (s) of an accused on the cheque/negotiable instrument are established, then these 'reverse 21 Crl R.P No. 1988 of 2011 onus' clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. This point of law has been crystalized by this Court in Rohitbhai Jivanlal Patel v. State of Gujarat (2019 (2) KHC 243)."
17. Similarly, in M/s.Shree Daneshwari Traders vs Sanjay Jain [2019 (4) KHC 495], the Hon'ble Supreme Court has held as follows:
"16. Under Section 138 of the Negotiable Instruments Act, once the cheque is issued by the drawer, a presumption under Section 139 of the Negotiable Instruments Act in favour of the holder would be attracted. Section 139 creates a statutory presumption that a cheque received in the nature referred to under Section 138 of the Negotiable Instruments Act is for the discharge in whole or in part of any debt or other liability. The initial burden lies upon the complainant to prove the circumstances under which the cheque was issued in his favour and that the same was issued in discharge of a legally enforceable debt.
17. It is for the accused to adduce evidence of such facts and circumstances to rebut the presumption that such debt does not exist or that the cheques are not supported by consideration. Considering the scope of the presumption to be raised under Section 139 of the Act and the nature of evidence to be adduced by the accused to rebut the presumption."22 Crl R.P No. 1988 of 2011
18. The records substantiate that the revision petitioner was holding a responsible position as Superintendent in the Varkala Municipality. The courts below have rightly concluded that it is unbelievable for a person like the revision petitioner to issue blank cheques to a money lender. It is also proved that the revision petitioner and the deceased complainant were relatives.
19. Furthermore, a competent civil court has passed Exts.P7 and P8 judgment and decree in favour of the deceased complainant permitting him to recover the covered payable amount by Ext.P1 cheque.
20. Notwithstanding the revision petitioner not disputing the execution of Ext.P1 cheque, at the fag end of the trial, her counsel had filed an application for 23 Crl R.P No. 1988 of 2011 comparison of the cheque with the other materials on record, under Section 73 of the Indian Evidence Act. The said application was allowed and a comparison was undertaken by the Trial Court, and found against the revision petitioner.
21. The contention that PW1 was unaware of the transaction is also unacceptable. Admittedly, PW1 is the daughter of the deceased complainant, and she has specifically testified that she had seen the revision petitioner executing and handing over Ext P1 cheque to her father. I accept the said statement.
22. The Trial Court has emphatically held that Ext.P1 cheque was issued by the revision petitioner towards a legal and enforceable debt.
24Crl R.P No. 1988 of 2011
23. Even though the revision petitioner has taken up a defence that she had not issued Ext.P1 cheque to the deceased complainant, the records tell a different story. The defence does not inspire confidence in this Court to take a different view from that of the courts below.
24. An upshot of the above discussions leads me to the irresistible conclusion that there is no illegality or impropriety in the concurrent findings of the courts below that Ext P1 was issued by the revision petitioner in discharge of a legally enforceable debt and that she has failed to shift the reverse onus of proof under Sec.139 of the N.I Act.
25. Finally, coming to the question of sentence. 25 Crl R.P No. 1988 of 2011
26. The Trial Court had sentenced the revision petitioner to undergo simple imprisonment for a period of one year and to pay a compensation of Rs.5,00,000/- and, in default, to undergo simple imprisonment for a further period of three months. The said sentence has been confirmed by the Appellate Court.
27. The Hon'ble Supreme Court has, in plethora of precedents held that Section 138 of the N.I. is more civil in nature, and the intention of the legislature is to provide the drawer of the cheque an opportunity to pay the debt, rather than incarcerating the accused in prison, which would serve no fruitful purpose to the complainant. Hence, the substantive sentence can always be limited to a minimum period, with an order 26 Crl R.P No. 1988 of 2011 to pay fine, and from which the complainant can be compensated.
28. In the light of the above exposition of law, I am inclined to modify the sentence by reducing the substantive sentence from one year to, till the rising of the Court and directing the revision petitioner to pay a fine of Rs.5,00,000/- and in default to undergo simple imprisonment for a period of six months. If the fine amount is paid, the same is to be paid to PW1 as compensation as provided under Sec.357 of Cr.P.C.
29. In the result,
(i) The revision petition is allowed in part;
(ii) The conviction imposed by the Trial Court and confirmed by the Appellate Court stands confirmed;
(iii) The sentence stands modified as under: 27 Crl R.P No. 1988 of 2011
(a) The revision petitioner/accused shall undergo simple imprisonment for a day, till the rising of the Court for the offence under Section 138 of the N.I. Act and also pay a fine of Rs.5,00,000/- (Rupees Five Lakh only), and in default of payment of fine, the revision petitioner shall undergo default imprisonment for a period of six months. The fine amount, if realised, shall be paid to PW1 as compensation under Section 357(1) (b) of the Cr.P.C.
(b) Considering the request of the revision petitioner, three months' time from today is granted to her, to deposit the fine amount.
(c) Needless to mention, if the revision petitioner has already paid any amount in discharge of Ext.P8 decree to the deceased complainant/PW1, the same 28 Crl R.P No. 1988 of 2011 shall be considered and decided by the Trial Court, while directing the revision petitioner to remit the fine amount.
(d) The revision petitioner is directed to appear before the Trial Court on or before 13.12.2023, to undergo the modified sentence and to pay the fine amount.
(e) In case of failure of the revision petitioner to appear before the Trial Court as ordered above, to undergo the sentence and pay the fine amount, the Trial Court is directed to execute the sentence without fail, in accordance with law.
(f) The execution of the sentence shall stand deferred till 13.12.2023.29 Crl R.P No. 1988 of 2011
(g) The Registry is directed to forthwith forward a copy of the judgment to the Trial Court for compliance.
sd/-
sks/13.9.2023 C.S.DIAS, JUDGE