IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 24TH SEPTEMBER 2009 / 2ND ASWINA 1931 Crl.Rev.Pet.No. 365 of 2001() ----------------------------- CRA.185/1999 of II ADDL. SESSIONS COURT, PALAKKAD ST.5306/1998 of JUDL.MAGISTRATE OF FIRST CLASS COURT, CHITTUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------- SATHEESH, S/O RAGHAVAN, AGED 32 MANAGING PARTNER, M/S RAGHAVAN AND COMPANY M.L.ROAD, KOTTAYAM BY ADV. SRI.K.M.VARGHESE RESPONDENT(S): RESPONDENTS/COMPLAINANT --------------- 1. STATE OF KERALA REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM 2. K.P.VINOD, MANAGING PARTNER KADALAYIL SONS, VATTEKKAD KOLLENGODE, CHITTUR BY PUBLIC PROSECUTOR SMT.REKHA.C NAIR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 365 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of September, 2009 ORDER The revision petitioner is the accused in ST.No.5306/1998 of Judicial First Class Magistrate, Chittur and appellant in Crl.A.No.185 of 1999 of Additional Sessions Court, Palakkad. 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 a fine of Rs. 45,000/-, in default, to undergo simple imprisonment for a further period of six months by the trial court. In appeal, the lower appellate court confirmed his conviction, but sentence was modified to the effect that the accused was directed to undergo simple imprisonment for three months and to pay compensation of Rs. 43,000/- under Section 357(3) Cr.P.C. Now the accused has come up in revision challenging is conviction and sentence. 2. The revision second respondent/complainant is the firm M/s Kadalayil Sons, Vattekkad, Kollengode, Chittur represented by its CRRP.No.365/2001 Page numbers Managing Partner PW1. Revision petitioner/accused is M/s Raghavan and company, Kottayam represented by its Managing partner the accused. The case of the revision second respondent/complainant as revealed from his complaint and as testified by PW1 before the trial court was that PW1 is the Managing partner of M/s.Kadalayil Sons , Vattekkad, Kollengode, Chittur that the accused being the managing partner of Raghavan and Company purchased rice from the complainant firm for Rs. 67,820/- on credit and towards part payment, the accused issued a cheque for Rs. 43,000/- Ext.P1 dated 13-04-1998 drawn on Canara Bank, Ettumanoor Branch which when presented for collection was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank, that inspite of the lawyer notice issued Ext.P4, the accused did not repay the amount, but sent a reply Ext.P5 raising false contentions and that therefore, the accused has committed an offence punishable under Section 138 of the Negotiable Instrument Act. 3. On receipt of the complaint, the trial court recorded the sworn statement of PW1 and took cognizance of the case. The CRRP.No.365/2001 Page numbers accused on appearance before the trial court pleaded not guilty to the charge under Section 138 of the Negotiable Instruments Act. On the side of the complainant, PWs 1 to 4 were examined and Exts.P1 to P7 were marked. When questioned under Section 313 Cr.P.C. by the trial court, the accused denied the entire transaction. On the side of the accused, he got himself examined as DW1 and marked Ext.D1. As DW1, he testified that Ext.P1 was issued as security and that no amount is due to the complainant firm from him. 4. On an appreciation of evidence, the trial court found that the accused has committed an offence punishable under Section 138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid. On appeal, the lower appellate court confirmed the said conviction, but sentence was modified to the effect that he shall undergo simple imprisonment for three months and to pay compensation of Rs. 43,000/-. The accused has now come up in revision challenging his conviction and sentence. 5. The following points arise for consideration. 1) Whether the conviction of the revision CRRP.No.365/2001 Page numbers petitioner under Section 138 of the Negotiable Instruments Act by both the courts below can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? 6. The plaintiff as PW1 testified in terms of the complaint before the trial court. PW1 is the Manager of the complainant firm. PW4 is his father. PW2 is the Manager of SBT, Kollengode and PW3 is the Manager, Canara Bank, Ettumanoor. The evidence of PWs 1 to 4 coupled with Ext P7 prove beyond doubt that for the amount due to the complainant firm, the accused issued the cheque Ext.P1 for Rs. 43,000/- on 13/04/1998 which when presented for collection, was returned dishonoured for want of sufficiency of funds in the account of the revision petitioner in the bank and that inspite of the notice- Ext.P4, the accused did not repay the amount. Further, issuance of the cheque - Ext.P1 is admitted by the revision petitioner. His case is that it was issued only as a security which is not proved. 7. I have gone through the evidence of PWs 1 to 4. I find no serious discrepancies in their evidence to discard their evidence. CRRP.No.365/2001 Page numbers Further their evidence is supported by Exts.P1 to P7. Therefore, I am inclined to confirm the findings of the trial court which is confirmed in appeal that the accused has committed an offence punishable under Section 138 of the Negotiable Instruments Act. That being so, the conviction of both the courts below of the revision petitioner under Section 138 of the Negotiable Instruments Act has to be confirmed. 8. As regards the sentence, the trial court imposed a sentence of simple imprisonment for six months and to pay a fine of Rs. 45,000/-, in default, to undergo simple imprisonment for a further period of one month which was modified by the lower appellate court to simple imprisonment for three months and to pay compensation of Rs. 43,000/-. The transaction was of the year 1998. Taking into consideration that aspect and in the circumstances of the case, I feel that a sentence of fine of Rs. 43,000/- being the cheque amount would meet the ends of justice. In the result, the conviction of the revision petitioner by the trial court which is confirmed in appeal is upheld. The sentence is modified to the effect that revision petitioner is sentenced to pay a fine of CRRP.No.365/2001 Page numbers Rs. 43,000/- being the cheque amount, in default, to undergo simple imprisonment for three months. The fine amount if realised shall be paid to PW1 as compensation as provided under Section 357(1) Cr.P.C. Rs. 15,000/- already deposited by the revision petitioner before the trial court shall be adjusted towards the fine imposed. He shall remit the balance amount of fine within three months from this date. P.Q.BARKATH ALI JUDGE sv. CRRP.No.365/2001 Page numbers