IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 18TH DECEMBER 2009 / 27TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 1772 of 2002() ------------------------------ CC.386/1999 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ALATHUR CRA.236/2001 of II ADDL. SESSIONS COURT, PALAKKAD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- P.P.KURIAKOSE, P.P.K.TRADERS, MALANCHARAKKU VYAPARA KADA, KIZHAKKANCHERRY ROAD, VADAKKANCHERRY, PALAKKAD DISTRICT. BY ADV. SRI.VARGHESE C.KURIAKOSE SRI.JACOB SEBASTIAN RESPONDENT(S): RESPONDENT/COMPLAINANT&STATE ------------------------------------------- 1. K.P.MATHAI, S/O.PAILEE, KAMBIRATHIL CHALLA VEEDU, KARIMPARA, KAYARADI P.O., THIRUVAZHIYAD, PALAKKAD DIST. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.S.VINOD FOR R1 R2 BY PUBLIC PROSECUTOR SRI K.J.MOHAMED ANZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P.1772 of 2002 ------------------------------------------------------ Dated: DECEMBER 18, 2009 ORDER The challenge in this revision is to the judgment of Judicial First Class Magistrate, Alathur in CC 386/1999 dated May 23, 2001 convicting the accused under sec.138 of the Negotiable Instruments Act and sentencing him to undergo simple imprisonment for six months. On appeal by the accused the Sessions Court, Palakkad in Crl.A.236/2001 by judgment dated November 7, 2002 confirmed the conviction and sentence of the accused. 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 was that towards the amount due to the complainant in dried ginger transaction, the accused issued the cheque Ext.P1 dated May 15, 1999 drawn on the Vadakkanchery Branch of the Dhanalakshmi Bank 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 May 29, 1999, the accused did not repay the amount, which is an offence punishable under sec.138 of the Negotiable Instruments Act. Crl.R.P.1772/02 2 3. On receipt of the complaint the learned magistrate recorded 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. PW.1 was examined and Exts.P1 to P5 were marked on the side of the complainant. When questioned under sec.313 Cr.P.C. by the trial court, the accused denied the transaction. No defence evidence was adduced. 4. The trial court 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 the counsel for the revision petitioner and the revision 1st respondent/complainant. 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.1772/02 3 Point No.I 7. PW.1/complainant testified in terms of the complaint before the trial court. No serious discrepancies were brought out during his cross-examination to discredit his evidence. That apart, his evidence is supported by Exts.P1 to P5. 8. The case of the revision petitioner/accused when questioned under sec.313 Cr.P.C. by the trial court was that he has no transaction with the complainant. But no evidence is adduced by the accused to prove the same. Further, the evidence on the side of the complainant shows that the amount mentioned in Ext.P1 cheque is due to the complainant. The trial court as well as the lower appellate court has chosen to believe the evidence of PW.1. I find no reason to come to a different conclusion. 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 PW.1 and finding that the accused has committed an offence punishable under sec.138 of the Negotiable Instruments Act and convicting him thereunder. Therefore I confirm the conviction of the revision petitioner under sec.138 of the Negotiable Instruments Act. Point No.II Crl.R.P.1772/02 4 10. As regards the sentence, the trial court imposed a sentence of simple imprisonment for six months which is confirmed in appeal. Taking into account the fact that the transaction is of the year 1999, I feel that a sentence of imprisonment till the rising of court and a fine of Rs.2,10,000/-, in default to undergo simple imprisonment for three months 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.2,10,000/-, in default to undergo simple imprisonment for three months. Out of the fine amount, if realised, Rs.2,00,000/- (two lakhs) 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. Three months time is granted for payment of fine. The accused/revision petitioner shall surrender before the trial court on or before 15.1.2010 to receive the sentence. P.Q. BARKATH ALI, JUDGE CRL.M.P.9463 of 2002 Dismissed. 18.12.2009 P.Q. BARKATH ALI, JUDGE Crl.R.P.1772/02 5 mt/-