IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 25TH SEPTEMBER 2009 / 3RD ASWINA 1931 Crl.Rev.Pet.No. 272 of 2001() ----------------------------- ( CC.NO.214/92 OF JFCM, MANANTHAVADY CRL.APPEAL NO.50/95 OF SESSIONS JUDGE, WAYANAD) REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------- KARUPPAN, S/O VELAPAN NADUVILEY HOUSE, THONICHAL NALLURNAD AMSOM, DESOM P.O. NALLURNAD, MANANTHAVADY BY ADV. SRI.P.V.SURENDRANATH RESPONDENT(S): RESPONDENTS AND STATE/COMPLAINANT/ STATE --------------- 1. ANATHAN IBRAI, S/O MAMMU POKER HAJI, THOTTAMALA KANJIRAMKAD AMSOM, DESOM MANANTHAVADY TALUK 2. STATE OF KERALA, REP. BY THE STATE PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM BY PUBLIC PROSECUTOR SRI.PUZHAKKARA MUHAMMED THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.272 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of September, 2009 ORDER The revision petitioner is the accused in C.C.No.214/1992 of Judicial First Class Magistrate Court, Mananthavady and the appellant in Crl.Appeal No.850/1995 of Sessions Court, Wayanad. The revision petitioner was convicted under Section 138 of the Negotiable Instruments Act and was sentenced to undergo simple imprisonment for three months and to pay a fine of Rs. 5,000/- , in default, to undergo simple imprisonment for a further period of two months. The lower appellate court on appeal confirmed his conviction and sentence. The accused has now come up in revision challenging his conviction and sentence. 3. The case of the first respondent/complainant as testified by him as PW2 before the trial court and as detailed in his complaint is that he entrusted Rs. 5206/- for the purpose of making a gold chain to the accused, who is a gold smith, that the accused did not give the gold CRRP.No.272/01 Page numbers chain, but agreed to pay back the amount for which he issued cheque Ext.P1 dated March 30, 1992 drawn on the Mananthavady Branch of Syndicate Bank which when presented for collection was returned dishonoured for want of sufficiency of founds in the account of the accused in the bank and that inspite of notice-Ext.P5, the accused did not repay the amount nor sent any reply and that therefore the accused has committed an offence punishable under Section 138 of the Negotiable Instruments Act. 4. On receipt of the complaint, the trial court recorded the sworn statement of PW2, the complainant and took cognizance of the case. The revision petitioner/accused on appearance before the trial court pleaded not guilty to the charge under Section 138 of the Negotiable Instruments Act. On the side of the complainant, PWs 1 and 2 were examined and Exts.P1 to P6 were marked. When questioned under Section 313 Cr.P.C., the accused denied the entire transaction. No defence evidence was adduced. 5. The trial court on an appreciation of evidence found the revision petitioner guilty of the offence punishable under Section 138 CRRP.No.272/01 Page numbers of the Negotiable Instruments Act, convicted him and sentenced him as aforesaid. On appeal, the lower appellate court confirmed his conviction and sentence. The accused has now come up in revision challenging his conviction and sentence. 6. The following points arise for consideration . 1) Whether the conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act by both the courts below can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? Point No.1 7. On the side of the complainant, PWs 1 and 2 were examined and Exts.P1 to P6 were marked. PW2-complainant testified in terms of the complaint. I have gone through the evidence of PW2. I find no reason to disbelieve his evidence. His evidence is supported by Exts.P1 to P6 and that of PW1, the Manager of the Bank. The trial court as well as the lower appellate court has chosen to believe his CRRP.No.272/01 Page numbers evidence and came to the conclusion that the revision petitioner has issued the cheque Ext.P1 to discharge his liability towards the complainant which when presented for collection was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank and that inspite of the notice - Ext.P5, he did not repay the amount which is an offence punishable under Section 138 of the Negotiable Instruments Act. I find no reason to come to a different conclusion. Therefore, I am inclined to confirm the conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act rendered by the trial court which is confirmed in appeal. Point No.2 8. As regards the sentence, the trial court imposed a sentence of simple imprisonment for three months and a fine of Rs. 5,000/- with default sentence which is confirmed in appeal. The transaction is of the year 1992. Further the revision petitioner is aged about 75 . Taking into consideration of all these aspects, I feel that a sentence of fine of Rs. 5,500/- would meet the ends of justice. In the result, the revision petition is allowed in part. The CRRP.No.272/01 Page numbers conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act rendered by the trial court which is confirmed in appeal is upheld. Sentence is modified to the effect that the revision petitioner is sentenced to pay a fine of Rs. 5,500/-, in default, to undergo simple imprisonment for two months. Fine amount, if realised, shall be paid to the complainant PW2 as compensation as provided under Section 357(1) of Cr.P.C. One month's time is granted for payment of fine. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. CRRP.No.272/01 Page numbers P.Q.BARKATH ALI CRRP.No.272/01 Page numbers JUDGE sv. CRRP.No.272/01 Page numbers