IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 18TH MARCH 2011 / 27TH PHALGUNA 1932 Crl.Rev.Pet.No. 2607 of 2005(A) ------------------------------- CRA.227/2002 of I ADDL. SESSIONS COURT, PALAKKAD ST.2945/1998 of JUDL.MAGISTRATE OF FIRST CLASS COURT-,OTTAPPALAM .................... REVN. PETITIONERS/ APPELLANTS/ACCUSED: ---------------------------------------- 1. KRISHNAKUMAR, S/O. NARAYANAN NAIR, DEVASYAM KALAM, SREEKRISHNAPURAM VILLAGE, PUNCHAPADAM DESOM, OTTAPPALAM. 2. SREEJITH, S/O. SREEKUMARAN, KIZHAKKEMADAM PULIYAKKOTTUTHODI, PANTHALINGAL, CHERPULASSERY AMSOM DESOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.D.ANIL KUMAR RESPONDENTS/RESPONDENT/ COMPLAINANT & RESPONDENT: ---------------------------------------- 1. K.P. SETHUMADHAVAN, S/O. KUNJANEZHUTHASSAN, KARATTU PARAMBATH HOUSE, KARALAMANNA AMSOM, VADAKKUMMURI DESOM, CHERPULASSERY VILLAGE, OTTAPPALAM TALUK, REP. BY POWER OF ATTORNEY HOLDER P. GOVINDANKUTTY, PONNETH HOUSE, KARALMANNA AMSOM, OTTAPPALAM TALUK. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI K.P.SETHUMADHAVAN -PARTY PUBLIC PROSECUTOR SRI.SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.A.NO.16994/2005 IN CRL.R.P.NO.2607/2005 DISMISSED 18-03-2011 Sd/-, P.Q.BARKATH ALI, JUGE /True Copy/ PA to Judge P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.2607 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of March, 2011 ORDER Revision petitioners are accused 1 and 2 in S.T.Case No.2945/1998 on the file of Judicial First Class Magistrate Court, Ottapalam and appellant in Crl.Appeal No.227/2002 of Sessions Court, Palakkad. The learned Magistrate by judgment dated June 21, 2002 convicted them under Section 138 of Negotiable Instruments Act and sentenced them to undergo simple imprisonment for three months each and to pay a fine of Rs. 3,000/- each, in default to undergo simple imprisonment for a further period of 15 days each, which is confirmed in appeal by the learned Sessions Judge by judgment dated July 22, 2005. The accused persons have now come up in revision challenging their conviction and sentence. 2. The case of the first respondent/complainant as testified by him as PW1 before the trial court and as detailed in the complaint was that the accused persons borrowed Rs.80,000/- from him and to discharge that liability, they issued the cheque Ext.P2 dated February Crl.R.P.No.2607/2005 2 17, 1998 which when presented for collection was returned dishounoured for want of sufficiency of funds in the account of the accused persons in the bank and that in spite of notice Ext.P5(a), the accused persons did not repay the amount which is an offence punishable under Section 138 of Negotiable Instruments Act. 3. On receipt of the complaint, the learned Magistrate recorded the sworn statement of the complainant PW1 and took cognizance of the offence. The accused persons on appearance before the trial court pleaded not guilty to a charge under Section 138 of Negotiable Instruments Act. PW 1 was examined and Exts.P1 to P6 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the accused persons denied the entire transaction. Ext.D1 was marked on the side of the accused. 4. The learned Magistrate on an appreciation of evidence found the revision petitioner guilty of the offence punishable under Section 138 of Negotiable Instruments Act, convicted them thereunder and sentenced them as aforesaid which is confirmed in appeal. The accused persons have now come up in revision challenging their Crl.R.P.No.2607/2005 3 conviction and sentence. 5. Heard the counsel for the revision petitioners/accused persons and the counsel for the revision first respondent/complainant. 6. The following points arise for consideration : 1) Whether the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act rendered 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 7. Complainant as PW1 testified in a convincing manner before the trial court regarding the transaction. Nothing was brought out during his cross examination to disbelieve his evidence. Further his evidence is supported by Exts.P1 to P6. 8. Counsel for the revision petitioner mainly contended that Rs.50,000/- has already been paid by the accused persons before the trial court as proved by Ext.D1 receipt and that therefore prosecution of the accused persons under Ext.P2 cheque for Rs. 80,000/- is not valid. There is no substance in the above contention. It is true that the revision petitioner has paid Rs. 50,000/- on April 6, 1990 towards the Crl.R.P.No.2607/2005 4 amount due under the cheque Ext.P2. But it can only be taken as a partial discharge of the amount due under Ext.P2 cheque which does not absolve the revision petitioners from the liability. The liability under the cheque can be wiped off only if the entire amount due therein is paid. Further, as the execution of the cheque Ext.P2 is admitted by the accused persons, presumption as envisaged under Section 118 and 139 of Negotiable Instruments Act is available to the complainant. No reliable evidence was adduced by the accused to rebut the above presumption. 9. For all these reasons, I am of the view that the trial court as well as the lower appellate court are perfectly justified in accepting the evidence of PW1 and finding that the accused persons have committed the offence punishable under Section 138 of Negotiable Instruments Act. Therefore I confirm the conviction of the revision petitioners under Section 138 of Negotiable Instruments Act. Point No.2 10. As regards the sentence, the trial court imposed a sentence of simple imprisonment for three months each and to pay a fine of Crl.R.P.No.2607/2005 5 Rs. 3,000/- each in default to undergo simple imprisonment for 15 days each which is confirmed in appeal. Taking into consideration the fact that the revision petitioners have already paid Rs.50,000/- out of the amount due under Ext.P2 cheque, we feel that a sentence of imprisonment till the rising of court and a direction to pay a compensation of Rs.15,000/- each with default sentence would meet the ends of justice. 11. In the result, the revision petition is allowed in part. The conviction of the revision petitioners under Section 138 of Negotiable Instruments Act is confirmed. The sentence imposed by the trial court which is confirmed by the lower appellate Court is modified to the effect that they are sentenced to undergo imprisonment till the rising of court and to pay a compensation of Rs. 15,000/- each to the complainant, in default to undergo simple imprisonment for one month each. Rs.15,000/- deposited by the accused persons before the trial court shall be adjusted towards the compensation amount ordered to be paid. The amount in deposit shall be released to the complainant. The accused persons need deposit only the balance amount. They shall Crl.R.P.No.2607/2005 6 surrender before the trial court on or before April 18, 2011 to suffer the sentence. Two month's time is granted for payment of compensation. Their bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.2607/2005 7