KUMARI Vs. VINODHAN

JUDGEMENT

(1.) This revision is in challenge of judgment of learned I Additional Sessions Judge, Thrissur in Cri-Appeal No.330 of 2006 confirming conviction but modifying sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, "the Act). Case of respondent No.1 is that petitioner borrowed Rs. 1,50,000/-from him to meet educational expenses of her son and for discharge of that liability issued Ext.Pl, cheque dated 30-4-2001. That cheque was dishonoured for insufficiency of funds as proved by Ext.P2. On getting dishonour intimation, respondent No. 1 issued statutory notice to the petitioner. Issue and service of statutory notice on petitioner are proved by Exts.P3 and P4. Ext.P5 is a letter said to be issued by the husband of petitioner to respondent No. 1. Petitioner denied that she had any transaction with respondent No. 1 and claimed that a few signed blank cheques of herself and her husband were given to one Raghavan on a promise that the latter will take her husband as a partner in the web site business. Raghvan did not comply with the promise. Later she learned that Raghavan borrowed money from several persons making use of those signed cheques. Thereon in the year, 2001 petitioner preferred a complaint to the police against Raghavan. That case is pending against Raghavan as C.C.No. 105 of 2001. Since Raghavan absconded case as included in the long pending register. Her further case is that respondent No. 1 is a friend of Raghavan and one of the signed blank cheque leaves has been misused. Petitioner proved Exts.D1 to D5. Learned magistrate was not impressed by the contention raised by petitioner, found her guilty, convicted and sentenced to undergo simple imprisonment till rising of court and pay Rs.1,50,000/- as compensation to respondent No.1. Petitioner took up the matter in appeal. When the matter was pending in the appellate court, petitioner filed an affidavit requesting that hearing of appeal be adjourned towards the end of January, 2008 to facilitate her paying the amount covered by cheque. She stated in the affidavit that she is not capable to raise money. She had applied for a loan from provident fund but the staff in the office of Accountant General are on strike and hence she is unable to get it. When the appeal was taken up for hearing, both sides argued in support of their contention. Learned I Additional Sessions Judge after referring to the contentions raised, observed in paragraph ten (10) of the judgment that since liability under the cheque is admitted by petitioner in the affidavit dated 27-11-2007 it is not necessary to go into the other contentions raised by both sides and accordingly, appeal was dismissed. That judgment is under challenge.

(2.) learned counsel for petitioner would contend that judgment of appellate court is illegal in that, points raised for consideration in appeal have not been dealt with. Instead, appellate curt has proceeded on the assumption that there is a plea of guilty by petitioner. It is also submitted by counsel that there is no admission of guilt in the affidavit dated 27-11-2007. Counsel for respondent No.l contended that appellate court was competent to look into the affidavit of the petitioner which admitted liability under the cheque which is the very substratum of the complaint and hence petitioner is no justified in contending that her affidavit should not have been looked into

(3.) I have gone through the affidavit dated 27-11-2007 filed by petitioner in the appellate court. That affidavit stated that petitioner is prepared to pay the amount covered by cheque and for the reasons stated therein and already indicated above, requested that hearing of the appeal be postponed till the end of January, 2008. I am unable to understand that affidavit was amounting to a plea of guilt as understood under law. What is stated in the affidavit is only that petitioner is prepared to pay the amount covered by cheque.