IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 17TH DECEMBER 2009 / 26TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 1057 of 2003() ------------------------------ CRA.170/1999 of ADDL. SESSIONS COURT (ADHOC) II, KASARAGOD STC.554/1997 of JUDL. MAGISTRATE OF FIRST CLASS, KASARAGOD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- SATHYANARAYANA K.M., S/O. KUNHIRAMAN NAMBIAR, MINCHIPADAVU, P.O. KUNTAR MUTTERIA, ADHUR VILLAGE, KASARAGOD TALUK, KASARAGOD DISTRICT. BY ADV. SRI.M.SASINDRAN SRI.K.P.HARISH RESPONDENT(S): RESPONDENTS/COMPLAINANT: --------------------------------------- 1. SATHEESHAN K., S/O.KRISHNAN KOMARA, NEAR BAGAVATHI TEMPLE, GRAMICS ROAD, THERUVATH, THALANGARA VILLAGE, KASARAGOD TALUK, KASARAGOD DISTRICT. 2. STATE, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI K.J.MOHAMED ANZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P. 1057 of 2003 ------------------------------------------------------ Dated: DECEMBER 17, 2009 ORDER The challenge in this revision petition is to the judgment of Judicial First Class Magistrate, Kasaragod in STC 554/1997 dated July 31, 1999 convicting the accused under sec.138 of the Negotiable Instruments Act and sentencing him to undergo simple imprisonment for four months which is confirmed in appeal by the Addl. Sessions Court (Adhoc) II, Kasaragod in Crl.A.170/1999 by judgment dated December 17, 2002. 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 is that towards Rs.20,000/- due to the complainant, the accused issued the cheque Ext.P1 dated January 27, 1997 drawn on the Syndicate Bank, Mulleria Branch 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 Ext.P4 dated February 8, 1997, the accused did not repay the amount, which is an offence punishable under sec.138 of the Negotiable Instruments Act. 3. On receipt of the complaint the learned magistrate recorded Crl.R.P.1057/03 2 the sworn statement of the complainant/PW.1 and 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. PWs.1 to 3 were examined and Exts.P1 to P7 were marked on the side of the complainant. When questioned under sec.313 Cr.P.C. by the trial court, the accused submitted that he has been falsely implicated in the case. No defence evidence was adduced. 4. The learned magistrate 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, which is confirmed in appeal. The accused has now come up in revision challenging his conviction and sentence. 5. Heard counsel for the revision petitioner. The revision 1st respondent/complainant though received notice, did not enter appearance. 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? Crl.R.P.1057/03 3 Point No.I 7. PWs.1 to 3 were examined and Exts.P1 to P7 were marked on the side of the complainant to prove the guilt of the accused. PW.1 is the de facto complainant and Pws.2 and 3 are the Bank Managers. PW.1 testified in terms of the complaint before the trial court. Nothing was brought out during his cross-examination to discredit his evidence. Further his evidence is supported by Exts.P1 to P7 and by Pws.2 & 3, Bank Managers. 8. The accused when questioned under sec.313 Cr.P.C. by the trial court denied the entire transaction. The accused did not adduce any evidence to prove his case. That apart, as the accused admitted the execution of Ext.P1, the presumption under secs.118 and 139 of the Negotiable Instruments Act is available for the complainant. No evidence was adduced to rebut the above presumption. 9. For all these reasons accepting the evidence of PW.1 I hold that the trial court as well as the lower appellate court is perfectly justified in coming to the conclusion that the accused has committed an offence punishable under sec.138 of the Negotiable Instruments Act. Therefore the conviction of the revision petitioner under sec.138 of the Negotiable Instruments Act is confirmed. Point No.II 10. As regards the sentence, the trial court imposed a sentence of simple imprisonment for four months, which is confirmed in Crl.R.P.1057/03 4 appeal. The transaction is of the year 1997. Therefore I feel that a sentence of imprisonment till the rising of court and a fine of Rs.20,000/- 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.20,000/-, in default to undergo simple imprisonment for two months. The fine amount, if realised, shall be paid to the complainant/PW.1 as compensation as provided under sec.357(1) of Cr.P.C. His bail bonds are cancelled. One month time is granted for payment of fine. The accused/revision petitioner shall surrender before the trial court on or before 8.1.2010 to receive the sentence. If any amount is deposited by the revision petitioner before the trial court towards fine, it shall be adjusted towards the fine imposed. The complainant will be entitled to withdraw that amount. P.Q. BARKATH ALI, JUDGE CRL.M.P.3970 of 2003 Dismissed. 17.12.2009 P.Q. BARKATH ALI, JUDGE mt/-