IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 9TH DECEMBER 2009 / 18TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 628 of 2002() ----------------------------- CRA.296/1999 of ADDL.SESSIONS COURT, KOZHIKODE CC.250/1998 of JUDL.MAGISTRATE OF FIRST CLASS-I, THAMARASSERY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- VASU, S/O.ARUMUGHAN, KOOTTARAYIL HOUSE, THEZHEKODE AMSOM, KACHERI DESOM, KOZHIKODE DISTRICT. BY ADV. SRI.SUNNY MATHEW RESPONDENT(S): RESPONDENTS/COMPLAINAT AND STATE ----------------------------------------------- 1. SHAMSUDHEEN, S/O.ASSAN, KUYYIL HOUSE, KODIYATHOOR AMSOM DESOM, KOZHIKODE TALUK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.K.SURENDRA MOHAN FOR R1 R2 BY PUBLIC PROSECUTOR SRI C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P. 628 of 2002 ------------------------------------------------------ Dated: DECEMBER 9, 2009 ORDER The revision petitioner is the accused in C.C. No.250/1998 of Judicial First Class Magistrate Court-I, Thamarassery, and the appellant in Crl.A.296/1999 of Additional Sessions Court, Kozhikode Division. He was convicted under sec.138 of the Negotiable Instruments Act and was sentenced to undergo simple imprisonment for one year and 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.15,000/- was ordered to be paid to the complainant as compensation. On appeal by the accused his conviction was confirmed, but the sentence was modified to the effect that he was sentenced to undergo simple imprisonment for three months and to pay a compensation of Rs.15,000/- to the complainant. Now the accused has come up in revision challenging his conviction and sentence. 2. The case of the revision 1st respondent/complainant as testified by him as PW.4 before the trial court and as detailed in the complaint is that PW.1 was employed under the accused as checking inspector in the bus owned by the accused, that at that time the accused obtained Rs.15,000/- from PW.1 as cash security, that when Crl.R.P.628/2002 2 PW.1 retired from the job, towards Rs.15,000/- due to the complainant from the accused, the accused issued the cheque Ext.P1 dated February 21, 1998 drawn on the Mukkam Service Co-operative Bank, which, when presented for collection, was returned dishonoured for want of sufficiency of funds in the account of the revision petitioner in the bank and that in spite of the notice Ext.P6, 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.4 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 to 5 were examined and Exts.P1 to P9 were marked on the side of the complainant. When questioned under sec.313 Cr.P.C. by the trial court, the accused denied the liability. No defence evidence was adduced. 4. The trial court on an appreciation of evidence found the revision petitioner guilty of the offence punishable under sec.138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid. On appeal by the accused, the lower appellate court confirmed his conviction, but reduced the substantive Crl.R.P.628/2002 3 sentence to simple imprisonment for three months. He was also directed to pay compensation of Rs.15,000/- to the complainant. The accused has now come up in revision challenging his conviction and sentence. 5. Heard counsel for the revision petitioner and the revision 1st respondent. 6. The following points arise for consideration:- I. Whether the conviction of the revision petitioner under sec.138 of the Negotiable Instruments Act can be sustained? II. Whether the sentence imposed is excessive or unduly harsh? Point No.I 7. The complainant was examined as PW.4 and he produced Exts.P1 to P9. The other witnesses are Bank Managers. PW.4 testified in terms of the complaint. Nothing was brought out during his cross- examination to discredit his evidence. His evidence is supported by Exts.P1 to P9 and PWs.1, 2, 3 and 5. 8. When questioned under sec.313 Cr.P.C. by the trial court, the accused denied the liability. No defence evidence was adduced. That apart, the accused has admitted the issuance of the cheque Ext.P1. Therefore the presumption under secs.118 and 139 of the Negotiable Crl.R.P.628/2002 4 Instruments Act is available to the complainant. The accused did not adduce any evidence to rebut the above presumption. 9. For all these reasons accepting the evidence of PW.1, I hold that the trial court as well as the lower appellate court is justified in finding that the accused has committed an offence punishable under sec.138 of the Negotiable Instruments Act. Point No.II 10. As regards the sentence, the trial court imposed a sentence of simple imprisonment for one year and a fine of Rs.30,000/-, in default to undergo simple imprisonment for three months. The lower appellate court modified the sentence to undergo simple imprisonment for three months and to pay a compensation of Rs.15,000/- to the complainant. 11. The transaction is of the year 1998. Therefore I feel that the substantive sentence can be reduced to simple imprisonment till the rising of court and to pay a a fine of Rs.20,000/- would meet the ends of justice. In the result, the revision petition is allowed in part. The conviction of the revision petitioner under sec.138 of the Negotiable Instruments Act is confirmed. The sentence is modified to the effect that he is sentenced to undergo imprisonment till the rising of court Crl.R.P.628/2002 5 and to pay a fine of Rs.20,000/-, in default to undergo simple imprisonment for three months. The fine amount, if realised, shall be paid to the complainant as compensation as provided under sec.357(1) of Cr.P.C. If any amount is deposited by the revision petitioner before the trial court, it shall be adjusted towards the fine amount. His bail bonds are cancelled. One month time is granted for payment of fine. The accused/revision petitioner shall surrender before the trial court on or before 30.12.2009 to receive the sentence. P.Q. BARKATH ALI, JUDGE CRL.M.P.3903 of 2002 Dismissed. 9.12.2009. P.Q. BARKATH ALI, JUDGE mt/-