IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 18TH DECEMBER 2009 / 27TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 726 of 2002() ----------------------------- CRA.62/1999 of ADDL.SESSIONS COURT, KOTTAYAM CC.53/1997 of JUDL.MAGISTRATE OF FIRST CLASS-II, KANJIRAPPALLY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- K.S.CHACKO,KIZHAKKEKARA,MUTTAPPALLY, MUKKUTTUTHARA P.O. BY ADV. SRI.WILSON URMESE RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE ------------------------------------------------ 1. K.T.THOMAS,PLATHOTTAM HOUSE, VENKURINJI BHAGOM,MUKKUTTUTHARA KARA, ERUMELY THEKKU VILLAGE. 2. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. ADV. SRI.P.RAVINDRA BABU FOR R1 R2 BY PUBLIC PROSECUTOR SRI K.J.MOHAMED ANZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P. 726 of 2002 ------------------------------------------------------ Dated: DECEMBER 18, 2009 ORDER The revision petitioner is the accused in C.C. No.53/1997 of Judicial First Class Magistrate Court-II, Kanjirappally, and the appellant in Crl.A.62/1999 of Additional Sessions Court, Kottayam. 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.2,25,000/- in default to undergo simple imprisonment for three months by the trial court. Out of the fine amount Rs.2,00,000/- was ordered to be paid to the complainant as compensation. On appeal by the accused, his conviction as well as the substantive sentence imposed by the trial court was confirmed. But the lower appellate court converted the fine as compensation of Rs.2,00,000/-. The accused has now come up in revision challenging his conviction and sentence. 2. The case of the revision 1st respondent/complainant as testified by him as PW.1 before the trial court and as detailed in the complaint was that the accused borrowed Rs.2 lakhs from the complainant and to discharge that liability he issued the cheque Ext.P1 dated June 10, 1996 drawn on the Mukkuttuthara Branch of the Catholic Syrian Bank which, when presented for collection, was Crl.R.P.726/02 2 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.P5 dated December 4, 1996, the accused did not repay the amount, which is an offence punishable under sec.138 of the Negotiable Instruments Act. 3. After recording the sworn statement of the complainant/PW.1 the trial court took cognizance of the offence. The accused on appearance before the trial court pleaded not guilty to the charge under sec.138 of the Negotiable Instruments Act. PW.1 was examined and Exts.P1 to P7 series were marked on the side of the complainant. When questioned under sec.313 Cr.P.C. by the trial court, the accused denied the entire transaction. 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 and modified the sentence as mentioned above. The accused has now come up in revision challenging his conviction and sentence. 5. Heard the counsel for the revision petitioner and the Crl.R.P.726/02 3 revision 1st respondent/complainant. 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 as PW.1 testified in terms of the complaint and produced Exts.P1 to P7 series before the trial court to prove his case. Nothing was brought out during his cross- examination to discredit his evidence. Further his evidence is supported by Exts.P1 to P7 series. 8. The case of the revision petitioner when questioned under sec.313 Cr.P.C. by the trial court was that there was a property transaction between himself and the complainant and in that transaction as security he issued a signed blank cheque and that towards Rs.2 lakhs due to the complainant, he has already paid the entire amount except Rs.5000/- and that the complainant has misused that cheque and created Ext.P1. But no evidence was adduced by the accused to prove his case. Further, the issuance of the cheque Ext.P1 was admitted by the accused. Therefore the presumption Crl.R.P.726/02 4 under secs.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. 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 PW.1 and finding the accused guilty of an offence punishable under sec.138 of the Negotiable Instruments Act. Therefore I confirm his conviction 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 to pay a fine of Rs.2,25,000/-, in default to undergo simple imprisonment for three months. The substantive sentence imposed is confirmed in appeal. The lower appellate court converted the fine into a compensation of Rs.2 lakhs. The transaction is of the year 1996. Therefore I feel that a sentence of imprisonment till the rising of court and to pay a fine of Rs.2 lakhs 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. He is sentenced to undergo imprisonment till the rising of court and to pay a fine of Rs.2 lakhs, in Crl.R.P.726/02 5 default to undergo simple imprisonment for three months. The fine amount, if realised, shall be paid to PW.1/complainant as compensation. The fine amount, if any, paid by the accused before the trial court shall be adjusted towards the fine imposed and the complainant will be entitled to withdraw that amount. His bail bonds are cancelled. Four months time is granted for payment of fine. The accused/revision petitioner shall surrender before the trial court on or before 15.1.2010 to receive the sentence. P.Q. BARKATH ALI, JUDGE CRL.M.P.4288 of 2002 Dismissed. 18.12.2009 P.Q. BARKATH ALI, JUDGE mt/-