IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 5TH NOVEMBER 2009 / 14TH KARTHIKA 1931 Crl.Rev.Pet.No. 2011 of 2003() ------------------------------------------- CRA.502/2000 of ADDL.SESSIONS COURT, KOZHIKODE CC.584/1998 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOZHIKODE .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- M/S. CHAKRAVARTHINI FILM CORPORATION REPRESENTED BY ITS MANAGING PARTNER, JANARDHANAN S/O. RAMAN, ARIMBUR, TRICHUR. BY ADVS.MR.V.V.SURENDRAN SMT.SANIKA.V.S. RESPONDENT(S): COMPLAINANT/STATE -------------------------------- 1. THOTTATHIL TEXTILES, S.M.STREET, CALICUT, REPRESENTED BY IT'S POWER OF ATTORNEY MBABUDEEN, S/O. MOIDEENKHAN, HOUSE NO.5/339H, WADI RAHA, PALATTUTHAZHAM VAYAL, KIZHAKKUMTHIRUTHI ROAD, ERANHIPALAM, CALICUT-6. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.REKHA C.NAIR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 2011 of 2003 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 5th day day of November, 2009 O R D E R Revision petitioner is the accused in C.C.No.584 of 1998 of the Judicial Magistrate of the First Class-I, Kozhikode and the appellant in Crl.A.No.502 of 2000 on the file of the Addl. Sessions Court, Kozhikode. He was convicted under section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for three months, which is confirmed in appeal. Now the accused has come up in revision challenging his conviction and sentence. 2. Revision petitioner/accused is M/s.Chakravarthini Film Corporation, represented by its Managing Partner. First respondent/complainant is Thottathil Textiles, represented by its power of attorney holder. The case of the prosecution, as testified by the complainant as PW1 before the trial court and as detailed in the complaint, is that in a business transaction between the complainant and the accused some amount was due to the complainant from the accused, for which the accused issued cheque Ext.P2 dated June 10, 1997for Rs.78,000/-, which when presented for collection was returned dishonoured for want of sufficiency of funds in Crl.R.P.2011/03 2 the account of the accused in the bank, that in spite of notice Ext.P5 dated December 19, 1997, the accused did not re-pay the amount, which is an offence punishable under section 138 of the Negotiable Instruments Act. 3. On receipt of the complaint, the learned Magistrate recorded the sworn statement of PW1 the power of attorney holder of the complainant company and took cognizance of the offence. The accused on appearance before the trial court, pleaded not guilty to the charge under section 138 of the Negotiable Instruments Act. PW1 was examined and Exts.P1 to P7 were marked on the side of the complainant. When the accused was questioned under section 313 Cr.P.C. by the learned Magistrate, he denied the entire transaction. The accused stated that he and one Pappachan were joint account holders in the bank and that at the instance of said Pappachan signed blank cheque of the accused was misused by the complainant and created cheque Ext.P2. No defence evidence was adduced. The learned Magistrate, on an appreciation of the evidence, found the accused guilty of the offence punishable under section 138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid, which is confirmed in appeal. The accused has come up in revision challenging his conviction and sentence. 4. The following points arise for consideration :- Crl.R.P.2011/03 3 1) Whether the conviction of the revision petitioner by the trial court under section 138 of the Negotiable Instruments Act, which was confirmed in appeal by the lower appellate court, can be sustained? 2) Whether the sentence imposed against the revision petitioner is excessive or unduly harsh? 5. The power of attorney holder of the complainant company was examined as PW1 and Exts.P1 to P6 were marked on the side of the complainant before the trial court. I have gone through his evidence. Nothing was brought out in cross-examination to discredit his evidence. The case of the accused was that misusing a signed blank cheque, at the instance of his partner Pappachan, the complainant has created Ext.P2 cheque. No evidence was adduced to prove the same. Further, issuance of cheque Ext.P2 was admitted by the accused. Therefore, presumptions under sections 118 and 139 of the Negotiable Instruments Act are available to the complainant. The accused was not able to rebut the presumption effectively. Therefore, I am inclined to confirm the conviction of the revision petitioner/accused under section 138 of the Negotiable Instruments Act. 6. As regards the sentence, the trial court has imposed sentence of simple imprisonment for three months, which is confirmed in appeal. The transaction is of the year 1997. Taking into consideration all these aspects, I feel that sentence of imprisonment till rising of the court and to pay fine of Crl.R.P.2011/03 4 Rs.78,000/-, being the cheque amount, in default to undergo simple imprisonment for three months would meet the ends of justice, 7. In the result, the revision petition is allowed in part. The conviction of the revision petitioner under section 138 of the Negotiable Instruments Act, rendered by the trial court, which is confirmed in appeal, is upheld. The sentence imposed on the revision petitioner is modified to the effect that the revision petitioner is sentenced to undergo imprisonment till the rising of the court and to pay fine of Rs.78,000/- , in default to undergo simple imprisonment for three months. His bail bonds are cancelled. The fine amount, if realized, shall be paid to the complainant as compensation as provided under section 357(1) of the Cr.P.C. The revision petitioner shall surrender before the trial court on or before 30-11-2009 to receive the sentence. Three months' time is granted for payment of the fine. Half of the fine amount, Rs.39,000/-, deposited by the accused before the trial court shall be adjusted towards the fine amount. The complainant is entitled to withdraw that amount. P.Q.BARKATH ALI, JUDGE. mn. Crl.R.P.2011/03 5 P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 2011 of 2003 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= O R D E R 5-11-2009