IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 20TH JUNE 2011 / 30TH JYAISHTA 1933 Crl.Rev.Pet.No. 491 of 2005() ----------------------------- CRA.118/2004 of FIRST ADDL. SESSIONS COURT, THRISSUR CC.802/2000 of JUDL. MAGISTRATE OF FIRST CLASS, CHAVAKKAD .................... REVN. PETITIONER(S): --------------------- CHERAYI PADINJAKKARA SREERAM, S/O.KRISHNANKUTTY PANICKER, CHERUVAYA DESOM, KADIKKAD AMSOM, PUNNAYOORKULAM P.O., THRISSUR DISTRICT. BY ADV. SRI.P.RAMACHANDRAN RESPONDENT(S): --------------- 1. CHERAYI PADINJAKKARA MOHANDAS, S/O.SUKUMARA PANICKER, CHERUVAYA DESOM, KADIKKAD AMSOM P.O.PUNNAYOORKULAM, THRISSUR DISTRICT. 2. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. ADV. SRI.A.K.CHINNAN FOR R1 SMT.SUSAL A. CHINNAN FOR R1 P.P.SRI.SABU SREEDHARAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Crl.R.P. No. 491 of 2005 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 20th day of June, 2011 O R D E R Revision petitioner is the accused in C.C.No.802/2000 on the file of the Judicial Magistrate of the First Class, Chavakkad and appellant in Crl.A.No.118/2004 on the file of the First Additional Sessions Court, Thrissur. He was convicted under section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for six months and to pay compensation of ` 68,500/-, in default to undergo simple imprisonment for three months by the learned Magistrate. On appeal by the accused, the lower appellate court confirmed his conviction, but modified the sentence to simple imprisonment for two months and to pay compensation of ` 68,500/-, in default to undergo simple imprisonment for five months. The accused has come up in revision challenging his conviction and sentence. 2. The case of the first respondent/complainant, as CRRP 491/2005 2 testified by him as PW1 before the trial court and as detailed in the complaint, was that the accused borrowed ` 62,000/- from him undertaking to repay the same, that when demanded, the accused issued cheque Ext.P1 dated January 31, 2000 drawn on Vadakkekkad Service Co-operative Bank Ltd. for ` 68,500/- to him on November 15, 1999 which when presented for collection was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank. In spite of notice Ext.P4 notice dated February 10, 2000, the accused did not re-pay the amount, but sent a reply stating false allegations. Therefore, the claimant filed the complaint before the trial court under section 138 of the 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 the charge under section 138 of the Negotiable Instruments Act. The complainant was examined as PW1 and Exts.P1 to P6 were CRRP 491/2005 3 marked on the side of the prosecution. When the accused was questioned under section 313 Cr.P.C. by the learned Magistrate, he submitted that he borrowed only ` 20,000/- from the complainant, that he had repaid the major portion of the amount and that for the balance amount he issued a blank signed cheque, which was misused by the complainant and created Ext.P1. No defence evidence was adduced. 4. The trial court, on an appreciation of the evidence, found the accused guilty of the offence punishable under section 138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him as afore said. On appeal by the accused, the lower appellate court confirmed his conviction but modified the sentence as stated above. The accused has come up in revision challenging his conviction and sentence. 5. Heard the learned counsel for the revision petitioner and the learned counsel for the first respondent/complainant. CRRP 491/2005 4 6. The following points arise for consideration :- 1) Whether the conviction of the revision petitioner/accused under section 138 of the Negotiable Instruments Act can be sustained? 2) Whether the sentence imposed on the revision petitioner/accused is excessive or unduly harsh ? 7. Point No.1:- The complainant as PW1 testified in terms of the complaint before the trial court. Nothing was brought out during cross-examination to discredit his evidence. Further, his evidence is supported by Exts.P1 to P6. 8. The case of the accused as suggested during the cross-examination of PW1 and as stated when questioned under section 313 Cr.P.C. by the learned Magistrate was that the accused borrowed ` 20,000/- from the complainant but he repaid major portion of that amount and for the balance amount he issued a signed blank cheque, which was misused by the complainant and created Ext.P1. No evidence was adduced by the CRRP 491/2005 5 accused to prove his case. Further as the accused admits execution of Ext.P1, presumption, as envisaged under sections 139 and 118 of the Negotiable Instruments Act, is available. No satisfactory evidence was adduced by the accused to rebut the above presumption. Therefore, in my view the trial court as well as the lower appellate court are perfectly justified in believing the evidence of PW1 and convicting the accused under section 138 of the Negotiable Instruments Act. The conviction of the revision petitioner under section 138 of the Negotiable Instruments Act by the trial court which was confirmed in appeal is upheld. 9. As regards the sentence, the trial court has imposed a sentence of simple imprisonment for six months and to pay compensation of ` 68,500/-, in default to undergo simple imprisonment for three months. The lower appellate court modified the sentence to simple CRRP 491/2005 6 imprisonment for two months and to pay compensation of ` 68,500/-, in default to undergo simple imprisonment for five months. The transaction is of the year 2000. Further the accused and the complainant are relatives. Therefore, I feel that sentence of imprisonment till the rising of court and to pay compensation of ` 68,500/- with default sentence would meet the ends of justice 10. In the result, the revision petition is allowed in part. The conviction of the revision petitioner/accused under section 138 of the Negotiable Instruments Act rendered by the trial court which was confirmed in appeal by the lower appellate court is upheld. The sentence imposed on the revision petitioner is modified to the effect that he is sentenced to undergo imprisonment till the rising of court and to pay compensation of ` 68,500/- to the complainant. Amount, if any, deposited by the revision petitioner/accused before the trial court shall be adjusted towards the compensation ordered to be paid. His bail bonds are cancelled. Two months’ time is granted for CRRP 491/2005 7 payment of the compensation. The revision petitioner/accused shall surrender before the trial court on or before July 15, 2011 to suffer the imprisonment till the rising of court. P.Q.BARKATH ALI, JUDGE. mn