IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 1ST DECEMBER 2011 / 10TH AGRAHAYANA 1933 Crl.Rev.Pet.No. 4234 of 2008() ------------------------------ CRA.736/2007 of ADDL.SESSIONS COURT (ADHOC) I, KOTTAYAM DIVISION CC.168/2007 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED:- --------------------- SUJA, AGED 22 YEARS W/O.P.K.RAJESH KUMAR, KARUNYAM, THIRUVANCHOOR , KOTTAYAM. BY ADV. SRI.SURIN GEORGE IPE RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE: --------------- 1. D.N.PRASANNAKUMAR, 51 YEARS, S/O.NARAYANAN NAIR, DHARBHOTHRAYIL HOUSE, THIRUVANCHOOR, KOTTAYAM 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SMT.A.SREEKALA FOR R1 PUBLIC PROSECUTOR SMT. P.P. SUNITHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P. Q. BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Crl.R.P. No. 4234 of 2008 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 1st day of December, 2011 O R D E R Revision petitioner is the accused in C.C.No.168 of 2007 on the file of the Judicial Magistrate of the First Class- II (Mobile), Kottayam and the appellant in Crl.A.No. 736 of 2007 on the file of the Addl. Sessions Court (Adhoc)-I, Kottayam Division. 2. The revision petitioner was convicted under section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for six months and to pay compensation of Rs. 2,50,000/-, in default to undergo simple imprisonment for a further period of three months by the learned Magistrate by judgment dated September 29, 2007. On appeal by the accused, the lower appellate court by judgment dated October 20, 2008 confirmed her conviction, but modified the substantive sentence to imprisonment till the rising of court. The direction to pay compensation was maintained. The accused has come up in revision CRRP 4234/2008 2 challenging her conviction and sentence. 3. The case of the first respondent/accused, as testified by him as PW1 before the trial court and as detailed in the complaint, in brief is this:- Towards Rs.2,45,000/- due to the complainant, the accused issued cheque Ext.P1 on November 7, 2004, which when presented for collection was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of notice Ext.P4 dated November 18, 2004, the accused did not re-pay the amount but sent a reply notice Ext.P7 raising false contentions. Therefore, the complainant filed the complaint under section 138 of the Negotiable Instruments Act before the trial court. 4. 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 the charge under section 138 of the Negotiable Instruments Act. The complainant was examined as PW1 and Exts.P1 to P9 were CRRP 4234/2008 3 marked on his side. When the accused was questioned under section 313 Cr.P.C. by the learned Magistrate, she denied the transaction. DW1 was examined on her side. 5. The trial court, on an appreciation of the evidence, found the accused guilty of the offence punishable under section 138 of the Negotiable Instruments Act, convicted her thereunder and sentenced her as afore said. On appeal by the accused, the lower appellate court confirmed her conviction but modified the sentence as mentioned above. The accused has come up in revision challenging her conviction and sentence. 6. Heard the learned counsel for the revision petitioner and the learned counsel for the first respondent. 7. The following points arise for consideration :- 1) Whether the conviction of the revision petitioner under section 138 of the Negotiable Instruments Act can be sustained? 2) Whether the sentence imposed is excessive or unduly harsh? 8. The complainant as PW1 testified in terms of the CRRP 4234/2008 4 complainant before the trial court. Nothing was brought out during his cross-examination to discredit his evidence. Further, his evidence is supported by Exts.P1 to P9. 9. The case of the accused was that her husband DW1 and the complainant were partners in a business firm, that a signed blank cheque belonging to the accused kept in the office of the firm was taken away by the complainant and the same was misused by him and created Ext.P1. In an attempt to prove her case, her husband was examined as DW1 before the trial court. But in the reply notice Ext.P7 the accused had no such case. The trial court as well as the lower appellate court had disbelieved the evidence of DW1. On going through his evidence, I find no reason to come to a different conclusion. That apart, as the accused has admitted the issuance of cheque Ext.P1, presumption as envisaged under sections 118 and 139 of the Negotiable Instruments Act is available to the complainant. No reliable evidence was adduced by the accused to rebut the above presumption. For all these reasons I hold that the trial court CRRP 4234/2008 5 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 the Negotiable Instruments act. Her conviction thereunder is confirmed. 10. As regards the sentence, the trial court imposed a sentence of simple imprisonment for six months and to pay compensation of Rs.2,50,000/- to the complainant, in default to undergo simple imprisonment for a further period of three months. The lower appellate court reduced the substantive sentence to imprisonment till the rising of court and maintained the direction to pay the compensation. I find no reason to reduce the sentence. 11. In the result, confirming the conviction of the revision petitioner rendered by the trial court, which was confirmed by the lower appellate court, and sentence, as modified by the lower appellate court, the revision petition is dismissed. Her bail bonds are cancelled. Two months' time is granted for payment of the compensation. CRRP 4234/2008 6 12. The revision petitioner shall appear before the trial court on or before December 15, 2011 to suffer the sentence. P. Q. BARKATH ALI, JUDGE. mn.