IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 20TH OCTOBER 2009 / 28TH ASWINA 1931 Crl.Rev.Pet.No. 1768 of 2002() ------------------------------ CRA.110/2000 of ADDL.SESSIONS COURT, (ADHOC), ERNAKULAM CC.411/1997 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- R.RAJENDRA BABU, ALIAS RAJENDRAN, S/O.RAMACHANDRAN, CC XV/834 A, MOOLAMKUZHI, COCHIN - 2. BY ADV. SRI.PHILIP T.VARGHESE SRI.N.SASI RESPONDENT(S): RESPONDENTS/COMPLAINANT -------------------------------------- 1. K.T.ANTONY, S/O.THOMAS, ETTITHARA HOUSE, NAZARETH, MOOLAMKUZHI, COCHIN-2. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.K.S.BABU FOR R1 SMT.N.SUDHA FOR R1 PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 1768 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of October, 2009 ORDER The revision petitioner is the accused in C.C.No.411/1997 of Judicial First Class Magistrate Court II, Kochi and appellant in Crl.Appeal No. 110/2000 of Additional Sessions Court (Adhoc I), Ernakulam. The revision petitioner was convicted under Section 138 of the Negotiable Instruments Act and sentenced to undergo rigorous imprisonment for a period of ten months and to pay a fine of Rs. 5000/-, in default, to undergo simple imprisonment for a further period of two months by the trial court. Out of the fine amount, if realised, Rs. 3,000/- was ordered to be paid to PW1/defacto complainant as compensation as provided under Section 357(1) Cr.P.C. On appeal, his conviction under Section 138 of the Negotiable Instruments Act was confirmed, but sentence was modified to the effect that he was sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 5,000/-, in default, to undergo simple Crl.R.P.No.1768/02 Page numbers imprisonment for a period of two months. Now 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 and as detailed in the complaint before the trial court was that for Rs. 2,50,000/- due to the complainant, the accused issued the cheque - Ext.P1 dated November 30,1996 drawn on the Thoppumpady branch of Canara Bank which when presented for collection was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank and that inspite of the notice - Ext.P3 dated March 25, 1997, the accused did not repay the amount which is an offence punishable under Section 138 of the Negotiable Instruments Act. 3. The learned Magistrate on receipt of the complaint recorded the sworn statement of the complainant PW1 and took cognizance of the case. The accused/revision petitioner 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 P7 were marked on the side of the complainant before the trial court. Crl.R.P.No.1768/02 Page numbers When questioned under Section 313 Cr.P.C. by the Magistrate, the accused denied the entire transaction. No defence evidence was adduced. 4. The learned Magistrate on an appreciation of the evidence found the revision petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid. The lower appellate court confirmed his conviction and modified the sentence as aforesaid. The accused has come up in revision challenging his conviction and sentence. 5. The following points arise for consideration : 1) Whether the conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act 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 6. On the side of the complainant PWs 1 to 3 were examined Crl.R.P.No.1768/02 Page numbers and Exts.P1 to P7 were marked before the trial court. PW1 is the complainant. PWs 2 is the Manager of the bank. PW 3 is the relative of PW1 who is also a party to Ext.P6. PW1 testified before the trial court in terms of the complaint . I have gone through the evidence of PW1. I find no suspicious inconsistencies or discrepancies in his evidence so as to discredit his evidence. Further his evidence is supported by Exts.P1 to P7 and PWs 2 and 3. It was the case of the the complainant that there were three cases against the accused filed by the complainant and PW3 and that in settlement of that case, the accused issued the cheque - Ext.P1. I have gone through the evidence of PWs 2 and 3. I am of the view that the trial court is perfectly justified in believing their evidence and coming to the conclusion that it was to discharge the liability, the accused has issued the cheque- Ext.P1 . I find no reason to come to a different conclusion. 7. That apart, the issuance of cheque - Ext.P1is admitted by the accused. Therefore the presumption available under Sections 118 and 139 of the Negotiable Instruments Act are available for complainant. The accused has not adduced any evidence to rebut the Crl.R.P.No.1768/02 Page numbers above presumption. For all these reasons, I am inclined to confirm the conviction of the revision petitioner/accused under Section 138 of the Negotiable Instruments Act which is confirmed in appeal by the lower appellate court . Point No.2 8. As regards the sentence, the trial court imposed rigorous imprisonment for ten months and to pay a fine of Rs. 5,000/-, in default, to undergo simple imprisonment for two months. The lower appellate court modified the sentence to the effect that he is sentenced to undergo simple imprisonment for six months and a fine of Rs.5,000/-. The transaction is of the year 1996. From 1994 onwards, cases were pending between the complainant and accused. Taking into consideration all these aspects, I feel that a sentence of imprisonment till the rising of court and a fine of Rs.2,50,000/- being the cheque amount would meed the ends of justice. In the result, the revision petition is allowed in part. The conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act by the trial court which is confirmed in Crl.R.P.No.1768/02 Page numbers appeal is upheld. The revision petitioner/accused is sentenced to undergo imprisonment till the rising of court and to pay a fine of Rs. 2,50,000/-, in default, to undergo simple imprisonment for a period of six months. Fine amount, if realised, shall be paid to PW1/complainant as compensation as provided under Section 357(1) Cr.P.C. His bail bonds are cancelled. Revision petitioner shall surrender before the trial court on or before 30-11-2009 to receive the sentence. One month's time is granted for payment of fine amount. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.1768/02 Page numbers Crl.R.P.No.1768/02 Page numbers P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.1768/02 Page numbers