IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 10TH SEPTEMBER 2009 / 19TH BHADRA 1931 Crl.Rev.Pet.No. 728 of 2001() ----------------------------- Crl.A.No.16/1998 of ADDL.SESSIONS COURT, KOZHIKODE CC.174/1996 of JUDL.MAGISTRATE OF FIRST CLASS, VADAKARA .................... REVN. PETITIONER(S): ----------------------------- SRI. P.ASSAINAR, PANATTU HOUSE, MANIYOOR.P.O., VADAKARA TALUK BY ADV. SRI.C.R.SIVAKUMAR RESPONDENT(S): ------------------------ - 1. SRI.C.K.ABDUL NASAR,S/O.MOIDU, MANZOOR MANZIL, NADAKKUTHAZHA, VADAKARA TALUK. 2. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR SRI.P.P.JAYASURYA HIGH COURT OF KERALA ADV. SRI.P.SAMSUDIN FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.728 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of September, 2009 ORDER The Revision Petitioner is the Accused in C.C.No.174/1996 of Judicial First Class Magistrate Court-1, Vadakara and the appellant in Criminal Appeal No.16/1998 of Additional Sessions Court, Kozhikode. The Revision Petitioner challenges his conviction under section 138 of Negotiable Instrument Act and sentence of simple imprisonment for a period of 6 months imposed by the Trial Court. The appellate court confirmed the conviction, but modified the sentence to simple imprisonment for 3 months and to pay fine of Rs.5,000/- (Rupees Five Thousand only) in default to undergo simple imprisonment for another two weeks. The accused challenges his conviction and sentence in this revision petition . 2. The case of the first respondent/complainant as alleged in his complaint and as testified by him as Pw1 before the Trial Court in brief is this. The accused borrowed Rs.27,000/- (Rupees Twenty Seven Thousand only) from the complainant and towards that liability the accused issued a cheque, Ext.P1 dated 17/10/1995, which when Crl.R.P.No.728 OF 2001 2 presented for collection was returned dishonoured for insufficiency of funds in the account of the accused in the bank. Inspite of the notice Ext.P3 dated 3/11/1995 the accused neither sent any reply nor paid the amount. Therefore the complainant has filed the complaint before the Trial Court. 3. On receipt of the complaint the learned Magistrate recorded the sworn statement of the complainant and took cognizance of the case.On reappearance before the trial court accused pleaded not guilty to a charge under section 138 of the Negotiable Instrument Act. Pw1 and 2 were examined and Exts.P1 to P5 were marked on the side of the complainant. When questioned under 313 of Cr.PC by the trial court, the accused denied the entire transaction. No defence evidence was adduced. On an appreciation of the evidence the learned Magistrate found the accused guilty of the offence punishable under section 138 of the Negotiable Instrument Act, convicted him and sentenced him as aforesaid. On appeal by the accused, the lower appellate court confirmed the conviction but modified the sentence as Crl.R.P.No.728 OF 2001 3 mentioned above. Now the accused has come up in revision. 4. The only question which arises for consideration is whether the conviction of the Revision Petitioner by the trial court which is confirmed in appeal and the sentence imposed by the trial court which is modified by the lower appellate court can be sustained. 5. The complainant as Pw1 before the trial court testified in terms of the Complaint and marked Exts.P1 to P5. He would say that the accused borrowed Rs.27,000/- (Rupees Twenty Seven Thousand only) from him and issued the cheque Ext.P1 dated 17/10/1995 drawn on the Perambra branch of State Bank of India, which when presented for collection was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank. Ext.P2 is the memo issued by the bank. Pw1 issued the notice Ext.P3 on 31/10/1995 which was received by the accused on 3/11/1995 as evidence from Ext.P4, the postal acknowledgment. The accused neither sent any reply nor repaid the amount. 6. I have gone through the evidence of Pw1. No serious Crl.R.P.No.728 OF 2001 4 discrepancies or inconsistencies were brought out during his cross examination to discredit his evidence. His evidence is supported by Exts.P1 to P5 and the evidence of Pw2, the Manager of Perambra branch of State Bank of India. Pw2 testified that when Ext.P1 cheque was presented there was only Rs.574/- (Rupees Five Hundred and Seventy Four only) in the account of the accused which is proved by Ext.P5 the ledger extract of the account in respect of the accused. The trial court as well as lower appellate court have considered in detail the evidence of Pw1 and Pw2 and chosen to believe their evidence. I have no reason to come to a different conclusion. 7. That apart, the issuance of the cheque Ext.P1 is not deposited by the accused. That being so presumption envisaged under sections 118 and 139 of Negotiable Instrument Act is available for the complainant. Accused did not adduce any evidence before the trial court that rebut the above presumption.Under these circumstances I find that the trial court as well as the lower appellate court are justified in accepting the evidence of the complainant and holding that Crl.R.P.No.728 OF 2001 5 the accused has committed the offence punishable under section 138 of the Negotiable Instrument Act and convicting him thereunder. 8. Regarding the sentence, the trial court has sentenced him to undergo simple imprisonment for 6 months. The lower appellate court modified the sentence as simple imprisonment for 3 months and to pay a fine of Rs.5,000/- (Rupees Five Thousand only) in default to undergo simple imprisonment for a further period of two months. Taking into consideration of the fact that revision petitioner/accused is an agriculturist and is now aged above 50 years, I feel that a sentence of fine of Rs.27,000/- (Rupees Twenty Seven Thousand only) being the cheque amount would meet the ens of justice. 9. In the result the revision petition is allowed in part. The conviction of the revision petitioner under section 138 of the Negotiable Instrument Act by the trial court which was confirmed by the lower appellate court is upheld. The sentence imposed by the trial court which is modified by the lower appellate court is further modified to the effect that the revision petitioner is sentenced to pay Crl.R.P.No.728 OF 2001 6 fine of Rs.27,000/- (Rupees Twenty Seven Thousand only) in default to undergo simple imprisonment for one month. The fine amount if realised shall be paid to the complainant as compensation as provided under section 357(1) of Cr.PC. One month time is granted for payment of fine. Bail bonds of the revision petitioner/accused are cancelled. P.Q.BARKATH ALI, JUDGE ssn