B. Jayakumari, Revathi, Opposite Karappuzha Government High School, Now Residing at Parappathattil Illam, Thiruvanchoor P.O., Kottayam vs Jobyson Philip, Managing Director, Kerala Publicity Bureau and State of Kerala

P.S. Gopinathan, J.—Assailing the legality, correctness and propriety of the concurrent finding of guilty and conviction for offence u/s 138 of the Negotiable Instruments Act; and sentence thereon to undergo simple imprisonment for three months, the first accused in C.C.No.1554/1997 on the file of the Judicial Magistrate of the First Class-III, Kottayam had come up in revision. There is no representation for the petitioner. Respondent is also absent. In the above circumstance, I have gone through the judgments of the courts below. I find that the first respondent prosecuted the revision petitioner along with her husband, who was the 2nd accused with a plea that in partial discharge of liability due from a company, wherein the petitioner and her husband were directors, Exhibit P3 cheque dated 30/8/1995 drawn on State Bank of India, Kottayam Branch for Rs. 66,528/- was issued and that when presented for collection Exhibit P3 was returned dishonoured with the endorsement ''exceeds arrangements'' along with Exhibits P4 and P5 memos. Despite the acknowledgment of the notice demanding discharge, as evidenced by Exhibit P8, the liability was not discharged. Since the 2nd accused did not respond to the process issued, the case against him was split up. The revision petitioner was sent for trial.

The revision petitioner pleaded not guilty. On the side of the first respondent, he was examined as PW1 and Exhibits P1 to P11 were marked. The revision petitioner when questioned u/s 313 of the Code of Criminal Procedure, took a plea of total denial. Exhibit D1, a copy of the Articles of Association was produced in support of the contention that the petitioner is not the managing director but only a director. The trail court on appraisal of the evidence on record arrived at a conclusion that though the petitioner is only a director, she is also a signatory to Exhibit P3. Consequently, the revision petitioner was found guilty, convicted and sentenced. Though she preferred Crl. A.46/2001 before the Sessions Judge, Kottayam, she was not successful.

The first respondent through the evidence of PW1 had succeeded to establish the liability, issuance of Exhibit P3 cheque, dishonouring of the same for want of sufficient amount in the account of the petitioner and the failure to discharge the liability even after the receipt of the notice. There is no evidence to controvert the evidence of PW1. The liability of the petitioner was disputed, as mentioned earlier for the reason that she is only a director of the company. The trial court had rightly come to a conclusion that though she is only a director, she had signed Exhibit P3 cheque and therefore she cannot escape from the liability and the prosecution. The silence of the petitioner after receiving notice demanding discharge of liability speaks volumes. I find no error, illegality or impropriety committed by he courts below in coming to a conclusion of the guilt of the revision petitioner. The conviction under challenge is unassailable.

Regarding sentence, on gender consideration, I find that the petitioner is entitled to a little leniency. It is also pertinent to note that no compensation was awarded to the first respondent and it is just and appropriate to award compensation to the first respondent. Therefore, the sentence requires a modification and that a sentence of imprisonment till the rising of the court with a fine of Rs. 75,000/- would meet the ends of justice. In the result, the revision petition is allowed in part. While confirming conviction, the sentence is reduced to imprisonment till the rising of the court with a fine of Rs. 80,000/- (rupees eighty thousand only). In default of payment of fine, the revision petitioner shall undergo simple imprisonment for three months. On realisation of the fine amount, Rs. 75,000/- (rupees seventy five thousand only) shall be paid to the first respondent as compensation. The trial court shall see the execution of sentence and report compliance. In the event, any amount is deposited before the trial court that shall be given credit.