V. SARASWATHY BHAI Vs. STATE OF KERALA

JUDGEMENT

(1.) ACCUSED in S.T. No. 1578 of 2006 on the file of the Judicial First Class Magistrate Court -IX, Thiruvananthapuram is a revision petitioner herein.

(2.) THE case was taken on file on the basis of the private complaint filed by the second respondent as complainant under Section 138 of the Negotiable Instrument Act (hereinafter called the Act). The case of the complainant in the complaint was that the accused and her husband came and borrowed a sum of Rs. 4,26,000/ - and in discharge of that liability Ext. P1 cheque was issued. The cheque when presented was dishonoured for the reason "funds insufficient" which is evident from Ext. P5 cheque referred and returned register and the complainant issued Ext. P2 notice on 15.09.2006 evidence by Ext. P3 postal receipt and it was received by the accused evidenced by Ext. P4 postal acknowledgment. Ext. P6 statement of accounts of the account of the complainant in the bank to show that he was having source to pay the amount. The accused had not paid the amount. So she had committed the offence punishable under Section 138 of the Negotiable Instrument Act. PW2 is the bank manager who was examined to prove Ext. P5. When the revision petitioner appeared before the court below the particulars offence were read over and explained to her and she pleaded not guilty. In order to prove the case of the complainant, PWs. 1 and 2 were examined and Exts. P1 to P6 were marked on his side. After course of the complainant's evidence, the accused was questioned under Section 313 of the Code of Criminal Procedure and she denied all the incriminating circumstances brought against her in the complainants evidence. She had further stated that she had not borrowed any amount and the husband of the accused had some financial transaction with the complainant and he had misused her cheque and handed over the same to the complainant and after their relationship strained, misusing the cheque, the present complaint has been filed. No defence evidence was adduced on the side of the revision petitioner. After considering the evidence on record, the learned magistrate found the revision petitioner guilty under Section 138 of the Act and convicted her thereunder and sentenced her to undergo simple imprisonment for three months and also to pay Rs. 4,26,000/ - as compensation to the complainant. In default to under go simple imprisonment for three months more under Section 357(3) of the Code of Criminal Procedure. Aggrieved by the same, the revision petitioner filed Crl. Appl. No. 910 of 2010 before the Sessions Court, Thiruvananthapuram and the same was disposed of by the Additional Sessions Judge -II, Thiruvananthapuram by the impugned judgment whereby the order of conviction and the compensation awarded were confirmed but the substantive sentence of three months imprisonment imposed by the court below was reduced to imprisonment till raising of court. Aggrieved by the same the present revision has been filed by the revision petitioner accused before the court below.

(3.) THE counsel for the revision petitioner submitted that in fact the cheque was issued from a joint account maintained by the husband of the revision petitioner and the revision petitioner and it was not signed by the husband of the revision petitioner and she was not aware of the issuance of the cheque by her husband to the complainant. Really there was no transaction between herself and the complainant and the cheque was misused by the husband of the revision petitioner for his liability for which the revision petitioner was not responsible and there is no passing of consideration for the cheque issued as per the revision petition is concerned and no offence under Section 138 of the Act is attracted.