IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 14TH DECEMBER 2009 / 23RD AGRAHAYANA 1931 Crl.Rev.Pet.No. 678 of 2002() ----------------------------- CRA.163/1999 of ADDL. SESSIONS COURT (ADHOC), THRISSUR CC.4/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHAVAKKAD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- K.R.NARAYANAN S/O. RAMAN, SHAILA NIVAS, MALLISSERY PARAMBU, GURUVAYUR, THRISSUR DISTRICT BY ADV. SRI.M.K.DILEEP KUMAR RESPONDENT(S): RESPONDENTS/COMPLAINANT -------------------------------------- 1. UNITED KURIES AND LOANS, GURUVAYUR, REPRESENTED BY ITS MANAGING PARTNER, RAMACHANDRAN S/O. KRISHNANKUTTY NAIR, MADATHIPARAMBIL HOUSE, GURUVAYUR, THRISSUR DIST. 2. STATE OF KERALA, REPRESENTED BY DIRECTOR GENERAL OF PROSECUTION, HIGH COURT, ERNAKULAM. ADV. SRI.RAJIT FOR R1 R2 BY P.P.SRI.C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. ------------------------------------- CRL.R.P.678 OF 2002 ------------------------------------- Dated this the 14th day of December, 2009 ORDER The revision petitioner is the accused in C.C.No.4/1998 of the Judicial First Class Magistrate's Court, Chavakkad, and the appellant in Crl.A.No.163/1999 of III Additional Sessions Judge(Adhoc) Fast Track Court No.1, Thrissur. He was convicted under Section 138 of the Negotiable Instruments Act and was sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.68,000/-, in default to undergo simple imprisonment for three months. Out of the fine amount if realised Rs.61,997/- was ordered to be paid to the complainant as compensation. The accused has come up in revision challenging his conviction and sentence. 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 is this: PW1 is the Managing Partner of United Kuries and Loans, Guruvayoor. The accused subscribed two kuries of Rs.50,000/- each conducted by the complainant company and bid the same. To discharge that liability accused issued a cheque Exhibit P1 dated October 29, 1997 for Rs.61,997/- drawn on the Guruvayoor Co- operative Urban Bank Ltd., which, when presented for collection, was 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 2 Exhibit .P8 dated December 3, 1997 accused did not repay 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/PW1 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 to 3 were examined and Exts.P1 to P12(e) were marked on the side of the complainant. When questioned under Section 313 Cr.P.C. the accused denied the allegations against him. 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 the Negotiable Instruments Act, convicted him thereunder and sentenced to him as aforesaid. The accused has now come up in revision challenging the conviction and sentence. 5. Heard the learned counsel for the revision petitioner and the revision first respondent/ complainant. 6. The following points arise for consideration:- I. Whether the conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act can be sustained? 3 II. Whether the sentence imposed is excessive or unduly harsh? Point No.I 7. PW. 1 was examined and Exts. P1 to P12(e) were marked on the side of the complainant to prove the guilt of the accused. PW1 testified in terms of the complaint. No serious discrepancies or inconsistencies were pointed out during the cross examination to discredit his evidence. Further his evidence is supported by Exts.P1 to P12(e) and that of PWs.2 and 3 the Bank Managers. 8. The case of the accused is that towards the amount due to the complainant company as security accused issued a signed blank cheque which was misused by complainant company and created Exhibit.P1. But no evidence was adduced by the accused to prove his case. That apart accused admitted the issuance of Exhibit.P1cheque. Therefore, the presumption under Sections 118 and 139 of the Negotiable Instruments Act is available for the complainant. Accused did not adduce any evidence to rebut the above presumption. 9. For all these reasons accepting the evidence of PW1 confirming the findings of trial court as well as that of the lower appellate court, I hold that the accused has committed the offence punishable under Section 138 of the Negotiable Instruments Act. Therefore, the conviction of the revision petitioner under Section 138 4 of the Negotiable Instruments Act is confirmed. Point No.II 10. As regards the sentence, the trial court sentenced the accused to undergo simple imprisonment for six months and to pay a fine of Rs.68,000/-. Out of the fine amount if collected Rs.61,997/- was ordered to be paid to the complainant as compensation. On an appeal by the accused, the Lower Appellate Court reduced the substantive sentence to simple imprisonment for two months and the accused was directed to pay compensation of Rs.62,000/- to the complainant/ revision first respondent. The transaction is of the year 1994. Taking into consideration that aspect I feel sentence of imprisonment till the rising of court and a fine of Rs.70,000/- would meet the ends of justice. 11. In the result, the conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act is confirmed. His sentence is modified to the effect that he is sentenced to undergo imprisonment till the rising of court and to pay a fine of Rs.70,000/-, in default to undergo simple imprisonment for three months. Out of the fine amount if realised Rs.65,000/- shall be paid to the complainant as compensation as provided under Section 357(1) Cr.P.C. The bail bonds of the accused shall stand cancelled. He shall appear before 5 the trial court on January 7, 2010 to receive the sentence. Any amount deposited by the revision petitioner before the trial court towards fine shall be adjusted towards the fine imposed. The complainant is entitled to withdraw that amount. Two months time is granted for payment of fine. P.Q.BARKATH ALI, JUDGE cms 6 P.Q.BARKATH ALI, J. ------------------------------- CRL.R.P.678 OF 2002 ------------------------------- ORDER 14-12-2009