IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 2ND NOVEMBER 2009 / 11TH KARTHIKA 1931 Crl.Rev.Pet.No. 1072 of 2003(C) -------------------------------------------- CRL.A. NO.103/2001 OF THE SESSIONS COURT, PALAKKAD, S.T. NO.3162/1998 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, PALAKKAD. REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------------- KAJA HUSSAIN, S/O. SYED MUHAMMED, AGED 35, THEKKEPPURA, PERUMKUNNAM, COYALMANNAM, PALAKKAD DISTRICT. BY ADVS. MR.VARGHESE C.KURIAKOSE, MR.JACOB SEBASTIAN. RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE: ---------------------------------------------------------------------------------------- 1. K.C.JAYAPRAKASH, S/O. CHELLAN, KUTHANNOOR VEEDU, COYALMANNAM, PALAKKAD DIST. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. MR.VENKATAESH P.R, R2 BY PUBLIC PROSECUTOR MR. C.M. KAMMAPPU. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/11/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.R.P. NO. 1072/2003-C: ORDER ON CRL.M.APPL. NO.6120/2003 IN CRL.M.P. NO.4055/2003 IN CRL.R.P. NO.1072/2003 DISMISSED 02/11/2009. SD/- P.Q.BARKATH ALI, JUDGE. //TRUE COPY// P.S. TO JUDGE. Prv. P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 1072 of 2003 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 2nd day of November, 2009 O R D E R Revision petitioner is the accused in S.T.Case No.3162 of 1998 of the Judicial Magistrate of the First Class -I, Palakkad and the appellant in Crl.A.No.103 of 2001 on the file of the Addl. Sessions Court, Palakkad Division. He was convicted under section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for one month and to pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for one month, which was confirmed in appeal. Now the accused has come up in revision challenging his conviction and sentence. 2. The case of the prosecution, as testified by the complainant as PW1 before the trial court and as detailed in the complaint, was that accused borrowed Rs.10,000/- from the complainant in the month of Crl.R.P.1072/03 2 October 1997, assuring that he would repay the amount within two months and on demand, the accused issued cheque Ext.P1 dated December 18, 1997, drawn on the State Bank of Travancore, Kuzhalmannam branch, which when presented for collection was dishonoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of notice Ext.P3 dated February 16,1998 the accused did not re-pay the amount, which is an offence punishable under section 138 of the Negotiable Instruments Act. 3. On receipt of the complaint, the learned Magistrate recorded the sworn statement of the complainant and took cognizance of the offence. The accused on appearance before the trial court, pleaded not guilty to the charge under section 138 of the Negotiable Instruments Act. PWs.1 and 2 were examined and Exts.P1 to P3 were marked on the side of the complainant. When the accused was questioned under section 313 Cr.P.C. by the learned Magistrate, he denied the transaction. The trial court, on an appreciation of the evidence, found the accused guilty of the offence punishable under section 138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him as afore said, which is confirmed in appeal. The accused has come up in revision challenging his conviction and sentence. Crl.R.P.1072/03 3 4. The following points arise for consideration :- 1) Whether the conviction of the revision petitioner by the trial court under section 138 of the Negotiable Instruments Act, which was confirmed in appeal by the lower appellate court, can be sustained? 2) Whether the sentence imposed against the revision petitioner is excessive or unduly harsh? 5. The complainant was examined as PW1 and Manager of the bank was examined as PW2. PW1 testified in terms of the complaint. I have gone through the evidence of PW1. Nothing was brought out in cross-examination to discredit his evidence. Further, his evidence is supported by PW2 the Manager of the bank. The case of the accused is that he has issued the cheque as security to one Navarasu, which was misused by the complainant and created Ext.P1. No evidence was adduced by the accused to prove his case. Further as the accused has admitted issuance of cheque Ext.P1, presumption under sections 118 and 139 of the Negotiable Instruments Act is available to the complainant. The accused did not adduce any evidence to rebut the above presumption. Therefore, I hold that the trial court as well as the lower appellate court is perfectly justified in holding that the accused has committed an offence punishable under section 138 of the Negotiable Instruments Act and convicting him thereunder. Therefore, Crl.R.P.1072/03 4 I confirm the conviction of the revision petitioner under section 138 of the Negotiable Instruments Act. 6. As regards the sentence, the trial court has imposed a sentence of simple imprisonment for one month and to pay fine of Rs.5,000/-, in default to undergo simple imprisonment for one month, which was confirmed in appeal. Taking into consideration the fact that the transaction was of the year 1997, I feel that sentence imprisonment till the rising of court and fine of Rs.10,000/-, being the cheque amount, and in default to undergo simple imprisonment for one month would meet the ends of justice 7. In the result, the revision petition is allowed in part. The conviction of the revision petitioner under section 138 of the Negotiable Instruments Act, rendered by the trial court, which was confirmed in appeal, is upheld. The sentence imposed on the revision petitioner is modified to the effect that the revision petitioner is sentenced to undergo imprisonment till the rising of the court and to pay fine of Rs.10,000/-, in default to undergo simple imprisonment for one month. The fine amount, if realized, shall be paid to PW1 as compensation as provided under section 357(1) of the Cr.P.C. His bail bonds are cancelled. One month time is granted for payment of fine. Crl.R.P.1072/03 5 The revision petitioner shall surrender before the trial court on or before 15th December, 2009 to receive the sentence. P.Q.BARKATH ALI, JUDGE. mn. Crl.R.P.1072/03 6 P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 1072 of 2003 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= O R D E R 2-11-2009