IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 22ND OCTOBER 2010 / 30TH ASWINA 1932 Crl.Rev.Pet.No. 3034 of 2004(D) ------------------------------- CRA.1/2003 of SESSIONS COURT, KOZHIKOE CC.410/1999 of JUDL. MAGISTRATE OF FIRST CLASS-V, KOZHIKODE .................... REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------- S.P.ABDUL RASHEED, PROPRIETOR, EAST INDIA TRAVEL CORPORATION, K.C.BUILDINGS, FEROKE, CALICUT. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S): COMPLAINANT AND STATE ------------------------------------ 1. P.SURESH KUMAR, S/O.THEYYAN, ERANHITHARA HOUSE, KARUVANTHURUTHY, CALICUT. 2. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.R.BINDU (SASTHAMANGALAM) FOR R1 PUBLIC PROSECUTOR SRI.PUZHAKKARA MUHAMMED THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.A.NO.13715/2004 IN CRL.R.P.NO.3034/2004 DISMISSED 22-10-2010 Sd/-, P.Q.BARKATH ALI, JUDGE /True Copy/ P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.3034 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of October, 2010 ORDER Challenge in this revision petition by the accused in C.C.No.410/1999 on the file of Judicial First Class Magistrate Court V, Kozhikode and appellant in Crl.Appeal No.1/2003 on the file of Sessions Court, Kozhikode is to the judgment of the Magistrate dated December 12, 2002 convicting the revision petitioner/accused under Section 138 of Negotiable Instruments Act and sentenced to undergo simple imprisonment for three months. The accused was also directed to pay a compensation of Rs. 20,000/- to the complainant, in default to undergo simple imprisonment for one month. On appeal by the accused, the lower appellate court confirmed his conviction and sentence by judgment dated August 17, 2004. 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 in brief is this : Crl.R.P.No.3034/2004 2 The accused availed a loan of Rs. 1,40,000/- from the complainant. In discharge of that debt, the accused transferred the chitty fund standing in his name in the Kerala State Financial Enterprises for Rs. 70,000/- . For the balance amount of Rs. 70,000/-, the accused issued two cheques, one for Rs. 20,000/- and another for Rs.50,000/-. Ext.P2 is the cheque for Rs.20,000/- issued by the accused in favour of the complainant dated December 5, 1998 on the understanding that Ext.P2 cheque will be encahsed after March 1, 1999. The cheque 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.P5 dated April 9, 1999, the accused did not repay the amount. Therefore, the complainant filed the complaint before the trial court under Section 138 of 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 a charge under Section 138 of Negotiable Crl.R.P.No.3034/2004 3 Instruments Act. Complainant was examined as PW1 and Ext.P1 to P5 series were marked on his side. When questioned under Section 313 of Cr.P.C., the accused denied the entire transaction. Ext.D1 was marked on his side. 4. The learned Magistrate on an appreciation of evidence found the revision petitioner guilty of the offence punishable under Section 138 of 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 the counsel for the revision petitioner/accused and the counsel for the revision first respondent/complainant. 6. The following points arise for consideration : 1) Whether the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act rendered 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 7. Complainant as PW1 testified in a convincing manner Crl.R.P.No.3034/2004 4 before the trial court regarding the transaction. Nothing was brought out during his cross examination to disbelieve his evidence. Further his evidence is supported by Exts.P1 to P5 series. 8. The specific case of the accused as suggested during the cross examination of PW1 and as stated by him when questioned under Section 313 Cr.P.C. was that he has discharged the debt due to the complainant. In an attempt to prove his case, the accused produced Ext.D1, a note book containing several entries. But Ext.D1 does not help the accused to prove his case. No other evidecne was adduced by the accused before the trial court. That apart, as the execution of the cheque Ext.P1 was admitted by the accused, presumption as envisaged under Section 118 and 139 of Negotiable Instruments Act is available to the complainant. No evidence was adduced by the accused 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 PW1 and finding that the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act and Crl.R.P.No.3034/2004 5 convicting him thereunder. Therefore I confirm the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act. Point No.2 10. As regards the sentence, the Trial court imposed a sentence of simple imprisonment for three months and to pay a compensation of Rs.20,000/-, in default to undergo simple imprisonment for one month, which is confirmed in appeal. Taking into consideration the fact that the transaction is of the year 1999, a lenient view is taken. I feel that a sentence of imprisonment till the rising of court and a compensation of Rs.25,000/- with default sentence would meet the ends of justice. In the result, revision petition is allowed in part. The conviction of the revision petitioner under Section 138 of Negotiable Instruments Act is confirmed. The sentence imposed by the trial court which is confirmed by the lower appellate Court is modified to the effect that revision petitioner is sentenced to undergo imprisonment till the rising of court and to pay a compensation of Rs.25,000/- to the complainant as provided under Section 357(3) Cr.P.C., in default to undergo simple imprisonment for one month. The revision petitioner shall surrender Crl.R.P.No.3034/2004 6 before the trial court on or before 15/11/2010 to receive the sentence. Time is granted till 15/11/2010 for payment of compensation. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.3034/2004 7 P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.3034/2004 8