IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 20TH AUGUST 2010 / 29TH SRAVANA 1932 Crl.Rev.Pet.No. 1351 of 2003() ------------------------------ ( CC.NO.771/1999 OF JFCM-I, KANJIRAPPALLY CRL.APPEAL NO.376/2001 OF SESSIONS COURT, KOTTAYAM) REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------- PRASANNAN, AGED 44 YEARS S/O RAMAN, KALLAMMACKAL HOUSE AMAYANNOOR P.O., AYARKUNNAM KOTTAYAM DISTRICT BY ADV. SRI.JOSE J.MATHAIKAL RESPONDENT(S): RESPONDENTS --------------- 1. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM 2. K.NIRMALAN, S/O KESAVAN, AGED 43 YEARS KOCHUKALAYIL HOUSE, VAZHOOR P.O., VAZHOOR VILLAGE KODUNGOOR, CHANGANACHERY KOTTAYAM DISTRICT ADV. SRI.M.J.THOMAS FOR R2 PUBLIC PROSECUTOR SRI.MUHAMMED PUZHAKKARA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.1351 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of August, 2010 ORDER Revision petitioner is the accused in C.C.No.771/2001 of Judicial First Class Magistrate Court I, Kanjirappally. He was convicted under Section 138 of Negotiable Instruments Act and was sentenced to undergo simple imprisonment for two months by the Magistrate by judgment dated July 7, 2001. The appeal filed by the accused as Crl.Appeal No.376/2001 before the Sessions Court, Kottayam was dismissed by judgment dated January 15, 2003 confirming the conviction and sentence of the accused. The accused has now come up in revision challenging his conviction and sentence. 2. The case of the revision second respondent/complainant as testified by him as PW1 before the trial court and as detailed in the complaint was that accused borrowed Rs. 3 lakhs from him and that in partial discharge of the said debt, accused issued the cheque Ext.P1 dated August 11, 1999 for Rupees One Lakh which when presented for collection was returned dishounoured for want of sufficiency of Crl.R.P.No.1351/2003 2 funds in the account of the accused in the bank and that in spite of notice Ext.P5 dated August 31, 1999, the accused 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 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 P7 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the accused submitted that the cheque was issued in his capacity as a mediator in a transaction between his brother and the brother-in-law of his brother and that no amount is due from him to the complainant. No defence evidence was adduced. 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 him thereunder and sentenced him as aforesaid which is confirmed in appeal. The Crl.R.P.No.1351/2003 3 accused has now come up in revision challenging his conviction and sentence. 5. Heard the counsel for the revision petitioner/accused and the counsel for the revision second 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. I have gone through his evidence. Nothing was brought out during his cross examination to disbelieve his evidence. Further his evidence is supported by Exts.P1 to P7. 8. The case of the accused as suggested during cross examination and as stated by him when questioned under Section 313 Cr.P.C. was that the cheque Ext.P1 was issued by him as a mediator in a transaction between his brother and the brother-in-law of his brother Crl.R.P.No.1351/2003 4 on one side and the complainant on the other and that the said liability has already been satisfied. But no evidence was adduced by him to prove his case. Further, as the execution of the cheque Ext.P1 was admitted by the accused, presumption as envisaged under Section 118 and 139 of Negotiable Instruments Act is available to the complainant. No evidence was adduced by the accused to rebut the above presumption. 9. For all these reasons, I hold that the trial court as well as the lower appellate court is perfectly justified in accepting the evidence of PW1 and finding that the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act and convicting him thereunder. Therefore I confirm the conviction of the revision petitioner 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 two months which is confirmed in appeal by the lower appellate court. Counsel for the revision petitioner/accused submitted that the revision petitioner has already Crl.R.P.No.1351/2003 5 paid the entire cheque amount to the complainant which is admitted by the counsel for the revision second respondent/complainant. Therefore, a lenient view is taken and the sentence is modified to the effect that revision petitioner/accused is sentenced to undergo imprisonment till the rising of court and to pay a fine of Rs. 1,000/-, in default to undergo simple imprisonment for two weeks. 11. In the result, revision petition is allowed in part. The conviction of the revision petitioner 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 he is sentenced to undergo imprisonment till the rising of court and to pay a fine of Rs. 1,000/-, in default to undergo simple imprisonment for two weeks. Time granted till 30/09/2010 for payment of fine. The revision petitioner shall surrender before the trial court on or before 30/09/2010 to receive the sentence. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.1351/2003 6