IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 19TH MAY 2010 / 29TH VAISAKHA 1932 Crl.Rev.Pet.No. 1569 of 2010() ------------------------------------------ CRA.13/2007 of SESSIONS COURT, WAYANAD STC.238/2005 of JUDL.MAGISTRATE OF FIRST CLASS-II, MANANTHAVADY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------------------------------------------------- P.A.MATHEW, S/O AGASTY, PALLIKUNNEL HOUSE, ELLUMANNAM, MANANTHAVADY, WAYANAD. BY ADVS. SRI.M.RAMESH CHANDER SRI.ANEESH JOSEPH RESPONDENT(S): COMPLAINANT AND STATE --------------------------------------------------------------- 1. MADHUSOODANAN, S/O KALIDASAN NAIR, PALLIYARKETTIL, ELLUMANDAM, MANANTHAVADY, WAYANAD. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-31. BY ADV.SRI.M.R.VENUGOPAL, PUBLIC PROSECUTOR. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1569 of 2010 ------------------------------- Dated this the 19th day of May, 2010. O R D E R Challenging the judgment dated 11.1.2007 in S.T.C.No.238/2005 of the Judicial First Class Magistrate Court- II, Mananthavady and the judgment dated 20.2.2010 in Crl.A.No.13/2007 of the Sessions Court, Vayanad, the accused preferred this revision petition, as he aggrieved by the conviction and sentence imposed against him as per the above judgments. 2. The case of the complainant against the revision petitioner is that, when the complainant was appointed as a conductor of the bus owned by the accused, he received a sum of Rs.25,000/- as security from the complainant and towards the discharge of the said liability, the revision petitioner issued a cheque dated 6.12.2004 for an amount of Rs.25,000/- and when the said cheque presented for encashment, it was dishonoured due to insufficiency of fund in the account maintained by the revision petitioner. Thus the complainant approached the trial court, alleging the offence u/s.138 of Negotiable Instruments Act Crl. R.P.No.1569 of 2010 2 against the revision petitioner. During the trial of the case, the complainant, adduced oral evidence against the revision petitioner, who was examined as PW1 and also produced Exts.P1 to P6. No evidence was adduced from the side of the defence. The trial court, after considering the rival pleadings and the evidence on record, found that the complainant has established his case and thereby he is entitled to get presumptions u/s.139 of Negotiable Instruments Act and accordingly held that the complainant has proved his case beyond doubt and Ext.P1 cheque was issued by the revision petitioner/accused to the complainant to discharge off the legally enforceable debt. The trial court convicted the revision petitioner u/s.138 of Negotiable Instruments Act and sentenced him to undergo simple imprisonment till the raising of the court and the accused/revision petitioner was also directed to pay a sum of Rs.25,000/- to the complainant as compensation u/s.357(3) of Cr.P.C. It is specifically directed that, in default of payment of the compensation, the accused has to undergo simple Crl. R.P.No.1569 of 2010 3 imprisonment for 3 months. The above finding of conviction and sentence challenged by the accused/revision petitioner by preferring Crl.A.No.13/07 and by judgment dated 20.2.2010, the lower appellate court while confirming the conviction, the sentence has modified and sentenced him to undergo simple imprisonment for 1 month and also sentenced to pay a fine of Rs.25,000/- and in default of payment of fine, he is directed to undergo simple imprisonment for a further period of 1 month. It is also directed that, if fine amount is remitted, it shall be payable to the complainant/respondent as compensation u/s.357(3) of Cr.P.C. It is the above judgments challenged in this revision petition. 3. The learned counsel for the revision petitioner submitted that, the petitioner/accused has already repaid the entire amount and Ext.P1 cheque is the one, misused by the complainant for the purpose of filing the complaint, after obtaining the same from the finance institution from where the accused availed loan. 4. Going by the judgments of the courts below, it can be Crl. R.P.No.1569 of 2010 4 seen that the above contention of the accused/revision petitioner has been elaborately considered by the courts below and concurrently found that the said case is false, since the revision petitioner failed to establish the same. It is relevant to note that, though the accused had set up a case to the effect that he had repaid the entire amount to the complainant, no evidence is adduced to substantiate such contention. Though the accused has claimed that there was an agreement to that effect ; that was also not produced. It appears that the revision petitioner had attempted to give an account, as to how the cheque in question reached in the hands of the complainant. According to the accused when he availed a loan from `Sundaram Finance', he had entrusted 10 cheque leaves with the Sundaram Finance and when the account was closed, after settling the loan liability, he send the complainant along with another person to receive back the cheque leaves and out of the 10 cheque leaves, entrusted with the complainant, one cheque leaf, which produced in the court as Ext.P1, misused by the complainant. Beside the above Crl. R.P.No.1569 of 2010 5 bald allegation, no evidence adduced by the accused/revision petitioner to prove the same. The trial court while considering the plea of the revision petitioner, held that it is quite unbelievable that the finance institution like Sundaram Finance, released the cheque leaves to the complainant without any document or authorisation from the loanee-the accused. Thus it can be seen that the defence version was rightly rejected by the trial court as well as the lower appellate court by assigning proper reasoning, which according to me is absolutely correct and no interference is called for. The available evidence and materials on record shows that, the complainant has established his case beyond reasonable doubt. Therefore according to me, there is no merit in the revision petition. 5. The learned counsel for the petitioner submitted that, some breathing time may be granted to make the payment. In this juncture it is relevant to note that, when the revision petitioner was convicted, the trial court imposed the sentence of simple imprisonment till the raising of the court and he was Crl. R.P.No.1569 of 2010 6 further directed to pay a sum of Rs.25,000/- to the complainant as compensation u/s.357(3) of Cr.P.C. When the above sentence and conviction challenged, the lower appellate court, while confirming the conviction, the sentence is modified and the substantial sentence of imprisonment has enhanced from one day to one month imprisonment and imposed a fine of Rs.25,000/- instead of compensation as directed by the trial court. The learned counsel for the revision petitioner submitted that, the sentence imposed adopted by the lower appellate court is highly arbitrary and incorrect, since the revision petitioner approached the lower appellate court, challenging the conviction and also the sentence, but when the appeal disposed of, the lower appellate court imposed a more severe punishment against the revision petitioner. Having regard to the facts and circumstances involved in the case, I am of the view that the sentence of imprisonment awarded by the trial court can be restored, instead of one month imprisonment imposed by the lower appellate court. At the same time, while confirming the Crl. R.P.No.1569 of 2010 7 sentence of fine fixed by the lower appellate court can be enhanced to the tune of Rs.30,000/- and the default sentence can be fixed as 3 months instead of one month. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner/accused u/s.138 of Negotiable Instruments Act recorded by the trial court as well as the lower appellate court. Accordingly, the revision petitioner is sentenced to undergo simple imprisonment till the raising of the court and he is also sentenced to pay a fine of Rs.30,000/- and in default of paying the fine amount, he is directed to undergo simple imprisonment for a further period of 3 months. If the fine amount is realised, the same shall be paid to the respondent/complainant as compensation u/s.357(1)(b) of Cr.P.C. The revision petitioner/accused is directed to appear before the trial court on 18.8.2010, to receive the sentence of imprisonment and to pay the fine amount as directed above. The amount, if any deposited by the revision petitioner towards the compliance of the order passed by the lower appellate court Crl. R.P.No.1569 of 2010 8 while suspending his sentence, can be adjusted towards the fine amount as refixed by this court and the revision petitioner need to pay the balance amount namely, Rs.22,000/- towards the fine amount. In case of any failure on the part of the revision petitioner in appearing before the trial court as directed above, it is upto the trial court to take coercive steps for procuring the presence of the revision petitioner and to execute the sentence. V.K.MOHANAN, Judge. ami/