IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 13TH OCTOBER 2009 / 21ST ASWINA 1931 Crl.Rev.Pet.No. 382 of 2001() ----------------------------- CRA.326/2000 of SESSIONS COURT, ERNAKULAM CC.1075/1995 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------- P.A.ABDUL SALAM, CC 14/616 B, NAZRATH, KOCHI - 2 EMPLOYED AT UNITED STEVENDORES ASSOCIATION WILLINGDON ISLAND, KOCHI -3) BY ADV. SRI.TOM JOSE SMT.GEETHA JOB(OZHUKAYIL) RESPONDENT(S): RESPONDENTS/COMPLAINANT --------------- 1. M.ASSIS, S/O MAMMOOTTI, SIT & SIP COOL BAR CC 12/2016, KOOVAPADAM MARKET, KOCHI - 2 MATTANCHERRY 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM PUBLIC PROSECUTOR SRI.PUZHAKKARA MUHAMMED THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 382 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of October, 2009 ORDER The revision petitioner is the accused in C.C.No.1075/1995 of Judicial First Class Magistrate Court, Kochi and appellant in Crl.Appeal No. 326/2000 of Sessions Court, Ernakulam. The revision petitioner was convicted under Section 138 of the Negotiable Instruments Act and sentenced to undergo rigorous imprisonment for a period of seven months and to pay a fine of Rs. 3500/-, in default, to undergo simple imprisonment for a further period of two months by the trial court. 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 five days and to pay compensation of Rs. 87500/-, in default, to undergo simple imprisonment for a period of two months. The lower appellate court has directed payment of Rs. 82500/- out of the compensation to the complainant. Now the accused has come up in revision challenging his conviction and sentence. Crl.R.P.No.382/2001 Page numbers 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 the accused borrowed Rs. 80,000/- from the complainant on August 16, 1995 and in discharge of that liability, he issued the cheque - Ext.P1 dated 16-08-1995 drawn on South Indian Bank Ltd which when presented for collection through the Vysya Bank Ltd, Mattanchery branch 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.P4, 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 P8 were marked on the side of the complainant before the trial court. When questioned under Section 313 Cr.P.C., the accused denied the Crl.R.P.No.382/2001 Page numbers entire transaction. On the side of the accused, DWs 1 and 2 were examined and Ext.D1 was marked. 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 and Exts.P1 to P8 were marked before the trial court. PW1 is the Crl.R.P.No.382/2001 Page numbers complainant. PWs 2 and 3 are the Managers of the bank. 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 P8. 7. The revision petitioner/accused denied his signature in Ext.P1. But DW1, the Assistant Director, FSL Thiruvananthapuram has examined his signature in Ext.P1 in detail with the admitted signatures of the accused and found that both were in the same handwriting. Therefore, the version of the accused that he has not issued the cheque - Ext.P1 cannot be accepted. No other point is argued before me. Therefore, 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 seven months and to pay a fine of Rs. 3500/-, in Crl.R.P.No.382/2001 Page numbers 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 five days and to pay compensation of Rs. 87500/-. The transaction is of the year 1995. Further the accused is now aged about 50. Taking into consideration all these aspects, I feel that a sentence of imprisonment till the rising of court and a fine of Rs.87500/- 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 appeal is upheld. The revision petitioner/accused is sentenced to undergo simple imprisonment till the rising of court and to pay a fine of Rs. 87,500/-, in default, to undergo simple imprisonment for a further period of three months. Out of the fine amount realised, Rs. 82500/- shall be paid to complainant as compensation as provided under Section 357(1) Cr.P.C. Rs. 25000/- deposited by the revision petitioner before the trial court shall be adjusted towards the fine amount. His bail bonds are cancelled. Revision petitioner shall Crl.R.P.No.382/2001 Page numbers surrender before the trial court on or before 30-10-2009 to receive the sentence. Counsel for the revision petitioner submits that wife of the revision petitioner is undergoing treatment for cancer. Hence four month's time is granted for payment of fine. P.Q.BARKATH ALI JUDGE sv. 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