IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 23RD NOVEMBER 2009 / 2ND AGRAHAYANA 1931 Crl.Rev.Pet.No. 922 of 2002() ----------------------------- CRA.342/1999 of ADDL. SESSIONS COURT, THRISSUR CC.53/1997 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THRISSUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- JAMES S/O.ARANGASSERY JOSE, PANAMUKKU DESOM, KANIMANGALAM VILLAGE, THRISSUR DISTRICT BY ADV. SRI.JIJO PAUL RESPONDENT(S): STATE&ADDL.RESPONDTS 3-12/L.R'S \ OF COMPLAINANT ------------------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKLULAM, KOCHI-31 2. DEVAKY W/O.KOTTILINGAL LATE ANANTHAN, PANAMUKKU DESOM, KANIMANGALAM VILLAGE, THRISSUR TALUK. 3. SUBRAN S/O.KOTTILINGAL LATE ANANTHAN, DO. DO. 4. ASHOKAN S/O.KOTILINGAL LATE ANANTHAN, DO. DO. 5. BABY, S/O.KOTTILINGAL LATE ANANTHAN, DO.DO. 6. VISWAMBHARAN S/O. KOTTILINGAL LATE ANANTHAN, DO.DO. Crl.R.P.No.922/2002 7. MALLIKA, D/O.KOTTILINGAL LATE ANANTHAN, DO. DO. 8. DEVAYANI, D/O.KOTTILINGAL LATE ANANTHAN DO. DO. 9. REGHU NANTHANAN S/O.KOTTILINGAL LATE ANANTHAN, DO.DO. 10. AYYAPPAN, S/O.KOTTILINGAL LATE ANANTHAN, DO DO. 11. LAKSHMI, D/O. KOTTILINGAL LATE ANANTHAN, DO. DO. BY PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.922 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of November, 2009 ORDER Revision petitioner is the accused in C.C.No.53/97 of Judicial First Class Magistrate Court II, Thrissur and appellant in Crl.Appeal No.342/1998 of Sessions Court, Thrissur. He was convicted under Section 138 of Negotiable Instruments Act and was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 40,000/-, in default, to undergo simple imprisonment for three months by the trial court. On appeal, his conviction was confirmed, but the substantive sentence was reduced to simple imprisonment for three months. The sentence of fine was converted into compensation as provided under Section 357(3) Cr.P.C. The accused has now come up in revision challenging his conviction and sentence. 2. The revision second respondent/complainant died. His legal heirs are respondents 2 to 11. The case of the complainant as testified by him as PW1 before the trial court and as detailed in the complaint was that accused borrowed Rs. 40,000/- from him and to Crl.R.P.No.922/02 Page numbers discharge that liability the accused issued the cheque Ext.P1 dated December 4, 1996 drawn on Federal Bank Ltd, Thrissur which when presented for collection was returned dishounoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of notice Ext.P3 dated December 21, 1996, 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 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 . Complainant and one witness were examined as PWs 1 and 2 and Exts.P1 to P6 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the accused denied the entire transaction. DW1 was examined on his side. 4. The trial court 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 Crl.R.P.No.922/02 Page numbers sentenced him as aforesaid. On appeal his conviction was confirmed but the sentence was modified as aforesaid. The accused has now come up in revision challenging his conviction and sentence. 5. Heard counsel for the revision petitioner. There is no appearance for revision respondents 2 to 11. 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. The complainant as PW1 testified in terms of the complaint before the trial court. Nothing was brought out during his cross examination to disbelieve his evidence. Further his evidence is supported by Exts.P1 to P6 and the evidence of PWs 2, the Bank Manager. Crl.R.P.No.922/02 Page numbers The case of the accused was that he borrowed some amount from the complainant and issued a blank signed cheque as security and that misusing that cheque complainant created Ext.P1. In an attempt to prove this, he has examined DW1. But DW1 was unable to say to which bank it was issued. He did not even see the cheque. Therefore, both the courts below have rightly rejected his evidence. For all these reasons, I am inclined to hold that both the courts below are justified in believing the evidence of PW1 and coming to the conclusion that Ext.P1 cheque was issued by the accused to discharge his liability to the complainant, which when presented for collection was returned dishonoured for want of sufficiency of of funds in the account of the accused in the bank and that in spite of the notice Ext.P3, the accused did not repay the amount which is an offence punishable under Section 138 of Negotiable Instruments Act. Therefore, the conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act is confirmed. Point No.2 Regarding the sentence, the trial court sentenced the revision Crl.R.P.No.922/02 Page numbers petitioner to undergo rigorous imprisonment for six months and to pay a fine of Rs. 40,000/-, in default, to undergo simple imprisonment for three months by the trial court. On appeal, his conviction was confirmed, but the substantive sentence was reduced to simple imprisonment for three months. The sentence of fine was converted into compensation as provided under Section 357(3) Cr.P.C. The revision petitioner produced a copy of the plaint in O.S.No.2102/1997 of Munsiff Court, Thrissur which is a suit filed by the complainant against the accused for realisation of the amount due under the same cheque. He has also produced a statement filed by one Sobana in E.P.No.1313/1999 in O.S.No.2102/97 stating that she has received the entire amount due under the cheque which shows that entire decree has been satisfied in this case. Therefore, the revision petition is allowed in part. The sentence is modified to the effect that revision petitioner is sentenced to pay a fine of Rs. 1,000/-, in default, to undergo simple imprisonment for one month. Counsel for the revision petitioner submitted that revision petitioner has deposited Rs. 20,000/- before the trial court at the time of suspending the sentence. After deducting the Crl.R.P.No.922/02 Page numbers fine amount, the balance amount shall be refunded to the revision petitioner. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.922/02 Page numbers