SERAPHIN AND ANR. Vs. LUCY ALPHONES AND ANR.

JUDGEMENT

(1.) The petitioner is the accused for the offence punishable under Sec.138 of the Negotiable Instruments Act in C.C.No.56/2013 on the file of the Judicial First Class Magistrate Court-IV (Mobile Court), Thiruvananthapuram, instituted on the basis of a complaint preferred by the 1st respondent herein. The trial court as per the impugned judgment rendered on 13.10.2015 had convicted the petitioner for the above said offence and had sentenced her to undergo imprisonment till the rising of the court and to pay compensation of Rs. 75,000/- (cheque amount) to the complainant as per Sec.357(3) of the Cr.P.C and in default thereof the accused was sentenced to undergo simple imprisonment for 2 months. Aggrived thereby, the petitioner has preferred Crl.A.314/2015 before the Sessions Court, Thiruvananthapuram. The appellate court concerned (Court of Additional Sessions Judge-II, Thiruvananthapuram), as per the impugned judgment rendered on 5.4.2016, has confirmed the impugned conviction and has also confirmed the substantive sentence of simple imprisonment till the rising of the court but modified the compensation of Rs. 75,000/- payable under Sec.357(3) of the Cr.P.C as an order to pay Rs. 75,000/- as fine, which has to be disbursed to the complainant as compensation under Sec.357(1)(b) of the Cr.P.C., with the same default clause of simple imprisonment for 2 months, etc. It is aggrieved by these judgments that the petitioner has preferred the instant revision petition by taking recourse to the remedy under Sec.397 r/w. Sec.401 of the Cr.P.C.

(2.) The case of the prosecution is that the accused had borrowed an amount of Rs. 75,000/- from the complainant on 10.10.2012 for her personal purpose and for repayment of the said amount the accused had issued Ext.P-1 cheque dated 10.12.2012 for an amount of Rs. 75,000/- drawn from her account in favour of the complainant. Upon Ext.P-2 dishonour memo dated 13.12.2012 from the bank, the complainant had issued Ext.P-3 statutory demand notice dated 17.12.2012 calling upon the accused to pay an amount of Rs. 75,000/- covered by the cheque within 15 dyas and the said notice was duly served on the accused to which Ext.P-6 reply dated 31.12.2012 has been sent by the accused. As the accused did not pay the amount, the complainant has preferred the instant complaint which has resulted in the trial in question.

(3.) The revision petition was admitted by this Court on 8.7.2016 and that on that day notice was also ordered to R-1 complainant. Though notice has been duly served on R-1, the said party has not entered appearance. This Court had adjourned the matter on various dates so as to ascertain whether R-1 is entering appearance. Later, the matter was heard.