IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 22ND OCTOBER 2010 / 30TH ASWINA 1932 Crl.Rev.Pet.No. 3364 of 2004(A) ------------------------------- CRA.246/2002 of ADDL. SESSIONS COURT (ADHOC)-II, ALAPPUZHA CC.1/1999 of JUDL.MAGISTRATE OF FIRST CLASS, AMABALAPUZHA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- MICHALE DEVASIA, S/O.DEVASIA, VENATTU VEEDU, THEKKEMURI, EDATHUA VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.A.KRISHNAN RESPONDENT(S): COMPLAINANT: --------------------------- 1. VARGHESE, S/O.KURIAN, KADUMMATHIL VEEDU, ANAPRAMBAL VADAKKE MURI, THALAVADY VILLAGE. 2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.M.V.MATHEW FOR R1 PUBLIC PROSECUTOR SRI.PUZHAKKARA MUHAMMED THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.A.NO.15352/2004 IN CRRP.NO.3364/2004 DISMISSED 22-10-2010 Sd/-, P.Q.BARKATH ALI, JUDGE /True Copy/ P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.3364 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of October, 2010 ORDER Challenge in this revision petition by the accused in C.C.No.1/1999 on the file of Judicial First Class Magistrate, Ambalapuzha and appellant in Crl.Appeal No.246/2002 on the file of Additional Sessions Court, Fast Track Court II, Alappuzha is to the judgment of the learned Magistrate dated June 29, 2002 convicting the revision petitioner/accused under Section 138 of Negotiable Instruments Act and sentencing to undergo simple imprisonment for six months which is confirmed in appeal by the lower appellate court by judgment dated April 29, 2004. 2. The case of the revision first respondent/complainant as testified by him as PW1 before the trial court and as detailed in the complaint in brief is this : The accused issued two cheques Exts.P1 and P2 dated October 10,1998 and May 30, 1998 respectively for Rs. 1,50,000/- each towards the amount due to the complainant in connection with Crl.R.P.No.3364/2004 2 agreement for sale of land of the accused to the complainant which was subsequently cancelled. The cheques when presented for collection were returned dishonoured for want of sufficiency of funds in the account of the accused in the bank and inspite of the notice Ext.P4 dated November 18, 1998, the accused did not repay the amount. Therefore, the complainant filed the complaint before the trial court under Section 138 of 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 a charge under Section 138 of Negotiable Instruments Act. Pws 1 and 2 were examined and Ext.P1 series to P8 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the accused denied the entire transaction. 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 Crl.R.P.No.3364/2004 3 and sentenced him as aforesaid which is confirmed in appeal. The accused has now come up in revision challenging his conviction and sentence. 5. Heard the counsel for the revision petitioner and the counsel for the revision first respondent. 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.P1series to P8 and the evidence of PW2, the Post Master who delivered the notice to the accused. 8. The specific case of the accused as suggested during cross examination and as stated by him when questioned under Section 313 Cr.P.C. was that he did not issue the cheques Ext.P1 series. But the Crl.R.P.No.3364/2004 4 accused was unable to explain how the complainant came into possession of Ext.P1 series cheques issued in the name of the complainant. Therefore, trial court is perfectly justified in rejecting the above version of the accused. 9. Counsel for the revision petitioner contended that accused did not receive the notice Ext.P4 and that the complainant did not produce the postal acknowledgment of the same. There is no merit in the above contention. PW2, the concerned Post Master had categorically stated that the said notices were delivered to the accused on November 21, 1998. Therefore, the above contention of the revision petitioner will not sustain. That apart, as the issuance of the cheques Ext.P1 series were proved, 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. 10. 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 Crl.R.P.No.3364/2004 5 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 11. As regards the sentence, the Trial court imposed a sentence of simple imprisonment for six months which is confirmed in appeal. Taking into consideration the fact that the transaction is of the year 1998, a lenient view is taken and I feel that a sentence of imprisonment till the rising of court and a compensation of Rs.3,00,000/- as provided under Section 357(3) Cr.P.C. with default sentence would meet the ends of justice. 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 compensation of Rs. 3,00,000/- to the complainant as provided under Section 357(3) Cr.P.C., in default to undergo simple imprisonment for Crl.R.P.No.3364/2004 6 three months. Two month's time is granted for payment of compensation. The revision petitioner shall surrender before the trial court on or before 15/11/2010 to receive the sentence. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.3364/2004 7