IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 21ST OCTOBER 2009 / 29TH ASWINA 1931 Crl.Rev.Pet.No. 611 of 2001() ----------------------------- CRA.166/1999 of V ADDL.SESSIONS COURT, ERNAKULAM CC.478/1996 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------- RAJENDRA BABU .S S/O RAMACHANDRAN C.C. 15/834- A MOOLAMKUZHI, KOCHI BY ADV. SRI.T.P.VARGHESE SRI.N.SASI RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE --------------- 1. BINDU RAJU, C.C. 19/1252 SDPY ROAD, PALLURUTHY COCHIN - 6 2. STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM ADV. SRI.P.T.JOSE FOR R1 PUBLIC PROSECUTOR SMT.REKHA C. NAIR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.611 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of October, 2009 ORDER The revision petitioner is the accused in C.C.No.478/1996 of Judicial First Class Magistrate Court II, Kochi and appellant in Crl.Appeal No. 166/1999 of Vth Additional Sessions Court, Ernakulam. The revision petitioner was convicted under Section 138 of the Negotiable Instruments Act and sentenced to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs. 40,000/-, in default, to undergo simple imprisonment for a further period of three months by the trial court. Fine amount, if realised, was ordered to be given to the complainant as compensation as provided under Section 357(1) Cr.P.C. On appeal, his conviction under Section 138 of the Negotiable Instruments Act was confirmed, but sentence was modified to the effect that the substantive imprisonment was reduced to simple imprisonment for 15 days. Now the accused has come up in revision challenging his conviction and sentence. 2. The case of the revision first respondent/complainant as Crl.R.P.No.611/2001 Page numbers testified by him as PW1 and as detailed in the complaint before the trial court was that the accused borrowed Rs. 40,000/- from the complainant and to discharge that liability the accused issue the cheque - Ext.P2 dated December 20, 1995 drawn on the Ernakulam branch of Bank of Maharashtra 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.P4 , the accused neither accepted the notice nor repaid the amount which is an offence punishable under Section 138 of the Negotiable Instruments Act. 3. The learned Magistrate on receipt of the complaint recorded the sworn statement of the complainant PW1 and took cognizance of the case. The accused/revision petitioner on appearance before the trial court pleaded not guilty to the charge under Section 138 of the Negotiable Instruments Act. PWs 1 to 3 were examined and Exts.P1 to P7 were marked on the side of the complainant before the trial court. When questioned under Section 313 Cr.P.C. by the Magistrate, the accused denied the entire transaction. No defence evidence was adduced. Crl.R.P.No.611/2001 Page numbers 4. The learned Magistrate on an appreciation of the evidence found the revision petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid. The lower appellate court confirmed his conviction and modified the substantive sentence imposed as aforesaid. The accused has come up in revision challenging his conviction and sentence. 5. The following points arise for consideration : 1) Whether the conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act by the trial court which is confirmed in appeal can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? Point No.1 6. On the side of the complainant PWs 1 to 3 were examined and Exts.P1 to P7 were marked before the trial court. PW1 is the complainant. PWs 2 and 3 are the Manager of the bank. PW1 testified before the trial court in terms of the complaint . I have gone through the evidence of PW1. I find no suspicious inconsistencies or Crl.R.P.No.611/2001 Page numbers discrepancies in his evidence so as to discredit his evidence. Further his evidence is supported by Exts.P1 to P7 and the evidence of PWs 2 and 3, the bank Managers. I have gone through the evidence of PWs 2 and 3. I find no reason to disbelieve their evidence. 7. The case of the revision petitioner was that when the amount was borrowed, Ext.A1 agreement was executed and as security Ext.P2 cheque was issued and that the same was not supported by consideration. No evidence was adduced by the accused to prove his case. Further, execution of the cheque- Ext.P2 was admitted by the accused. Therefore the presumption under Sections 118 and 139 of the Negotiable Instruments Act are available for the complainant. The accused has not adduced any evidence to rebut the above presumption. For all these reasons, I am inclined to hold that the trial court as well as the lower appellate court was justified in believing the evidence of PWs 1 to 3 and finding that the accused has committed the offence punishable under Section 138 of the Negotiable Instruments Act. Therefore, I uphold the conviction of the accused by the trial court which is confirmed in appeal. Crl.R.P.No.611/2001 Page numbers Point No.2 8. As regards the sentence, the trial court imposed rigorous imprisonment for three months and to pay a fine of Rs. 40,000/-, in default, to undergo simple imprisonment for three months. The lower appellate court reduced the substantive sentence to 15 days imprisonment. The sentence of fine was maintained by the lower appellate court. The transaction is of the year 1994. Therefore, I feel that a fine of Rs. 40,000/- alone would meet the ends of justice. In the result, the revision petition is allowed in part. The conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act by the trial court which is confirmed in appeal is upheld. The revision petitioner/accused is sentenced to pay a fine of Rs. 40,000/- in default to undergo simple imprisonment for three months. The fine amount, if realised, shall be paid to PW1/complainant as compensation as provided under Section 357(1) Cr.P.C. His bail bonds are cancelled. Revision petitioner shall pay the fine amount within two months from this date. P.Q.BARKATH ALI, JUDGE sv. Crl.R.P.No.611/2001 Page numbers Crl.R.P.No.611/2001 Page numbers Crl.R.P.No.611/2001 Page numbers Crl.R.P.No.611/2001 Page numbers P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.611/2001 Page numbers