IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 8TH DECEMBER 2009 / 17TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 103 of 2002() ----------------------------- CRA.172/1999 of SESSIONS COURT, THRISSUR ST.4345/1996 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA .................... REVN. PETITIONER(S): 1ST RESPONDENT ----------------------------------- GEORGE, S/O.ALOOKKARAN ANTHONY,NELLAI DESOM,PARAPPUKKARA VILLAGE,MUKUNDAPURAM TALUK. BY ADV. SRI.SABU GEORGE RESPONDENT(S): APPELLANT & 2ND RESPONDENT ----------------------------------------- 1. MOHANAN, S/O.PANDARIYIL RAMAN, CHEMBUCHIRA DESOM,MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 2. STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR. R2 BY PUBLIC PROSECUTOR SRI K.J.MOHAMED ANZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P. 103 of 2002 ------------------------------------------------------ Dated: DECEMBER 8, 2009 ORDER The revision petitioner is the complainant in S.T.Case No.4345/1996 of Judicial First Class Magistrate Court, Irinjalakuda and the respondent in Crl.A.172/1999 of Sessions Court, Thrissur. The revision 1st respondent/accused was convicted by the trial court under sec.138 of the Negotiable Instruments Act and was sentenced to pay a fine of Rs.30,000/-, in default to undergo simple imprisonment for three months. Out of the fine amount, if realised, Rs.27,000/- was ordered to be given to the complainant as compensation. On appeal by the accused the lower appellate court reduced to fine to Rs.5000/-. Now the complainant has come up in revision challenging the judgment of the lower appellate court reducing the fine to Rs.5000/-. 2. The case of the revision petitioner/complainant as testified by him as PW.1 before the trial court and as detailed in the complaint is that the revision 1st respondent/accused borrowed Rs.40,000/- from him and to discharge that liability he issued the cheque Ext.P1 dated May 28, 1996 drawn on the Kodakara Branch of the Dhanalakshmi Bank which, when presented for collection, was returned dishonoured for want of sufficiency of funds in the account of Crl.R.P.103/2002 2 the revision 1st respondent/accused in the bank and that in spite of the notice Ext.P3 dated June 12, 1996, the accused did not repay the amount, which is an offence punishable under sec.138 of the Negotiable Instruments Act. 3. On receipt of the complaint the trial court recorded the sworn statement of the complainant/PW.1 and took cognizance of the case. The accused on appearance before the trial court pleaded not guilty to the charge under sec.138 of the Negotiable Instruments Act. PWs.1 and 2 were examined and Exts.P1 to P6 were marked on the side of the complainant. When questioned under sec.313 Cr.P.C. by the trial court, the accused submitted that DW.1 purchased some gold ornaments from the shop of the complainant and towards the price of the gold ornaments as security the accused issued a blank cheque to the complainant and that therefore the cheque Ext.P1 is without any valid consideration. On the side of the accused DWs.1 to 3 were examined. 4. The trial court on an appreciation of evidence found the accused guilty of the offence punishable under sec.138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid. On appeal his conviction was confirmed, but the sentence was modified as mentioned above. The complainant has now come up in revision challenging the judgment of the lower appellate court reducing the fine to Rs.5000/-. Crl.R.P.103/2002 3 5. Heard the counsel for the revision petitioner/complainant. Though notice was served on the accused/revision 1st respondent, he remained absent. 6. The following points arise for consideration:- Whether the lower appellate court is justified in reducing the fine amount? 7. On the side of the revision petitioner/complainant PW.1 was examined and Exts.P1 to P6 were marked before the trial court. I have gone through the evidence of P.W.1 Nothing was brought out during his cross-examination to discredit his evidence. Further, his evidence is supported by Exts.P1 to P6. 8. The case of the accused was that DW.1 purchased some gold ornaments from the shop of the complainant and towards the price of the gold ornaments, as security the accused issued a blank cheque to the complainant which was misused by him and created Ext.P1. In an attempt to prove his case, he examined DWs.1 to 3. Both the courts below have disbelieved their evidence and rejected the above case of the accused. The accused has not challenged his conviction and sentence by filing a revision. Therefore I am inclined to confirm the conviction of the revision 1st respondent/accused under sec.138 of the Negotiable Instruments Act. 9. As regards the sentence, the trial court imposed a a fine of Rs.30,000/-. On appeal the learned Sessions Judge reduced it to Crl.R.P.103/2002 4 Rs.5000/-. The cheque is for Rs.40,000/-. Therefore the learned Sessions Judge is not justified in reducing the fine amount. That being so, the sentence imposed by the lower appellate court reducing the fine to Rs.5000/- has to be set aside. In the circumstances I feel that a sentence of fine of Rs.40,000/-, in default to undergo simple imprisonment for three months would meet the ends of justice. The fine amount, if realised, shall be paid to the revision petitioner/complainant as compensation. In the result, the revision petition is allowed. The conviction and sentence of the revision 1st respondent/accused by the trial court as well as by the lower appellate court under sec.138 of the Negotiable Instruments Act is confirmed. His sentence is modified to the effect that he is sentenced to pay a fine of Rs.40,000/-, in default to undergo simple imprisonment for three months. His bail bonds are cancelled. One month time is granted for payment of fine. The fine amount, if realised, shall be paid to the complainant as compensation as provided under sec.357(1) Cr.P.C. P.Q. BARKATH ALI, JUDGE mt/-