IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 28TH SEPTEMBER 2010 / 6TH ASWINA 1932 Crl.Rev.Pet.No. 2226 of 2004(C) ------------------------------- CRA.106/2002 of II ADDL. SESSIONS COURT, PALAKKAD ST.3895/2000 of JUDL.MAGISTRATE OF FIRST CLASS COURT, CHITTUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED. --------------------------------------- VELAYUDHAN, S/O.VELAPPAN, ERIMETTIL, MOOLATHARA, CHITTUR. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT(S): COMPLAINANT AND STATE. ------------------------------------- 1. MUTHUSWAMY, S/O.MAYIL SWAMY KOWNDER, VRINDAVAN P.O. MEENAKSHIPURAM. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.SABU SREEDHARAN SRI.H.BADARUDDIN FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.A.No.10273/2004 in Crl.R.P.No.2226/2004 Dismissed. 28-09-2010 Sd/-, P.Q.BARKATH ALI, JUDGE /True Copy/ P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.2226 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of September, 2010 ORDER Revision petitioner is the accused in S.T.No.3895/2000 of Judicial First Class Magistrate, Chittur and appellant in Crl.Appeal No.106/2002 of II Addl. Sessions Court, Palakkad. He was convicted under Section 138 of Negotiable Instruments Act and was sentenced to undergo simple imprisonment for one month and to pay a compensation of Rs. 23,000/- to the complainant by the Magistrate which is confirmed in appeal. The accused has now come up in revision challenging his conviction and sentence. 2. The case of the first respondent/complainant as testified by him as PW1 before the trial court and as detailed in the complaint was that accused borrowed Rs. 20,000/- from him and to discharge that liability, he issued the cheque Ext.P1 dated March 18, 2001 drawn on Moolathara Service Co-operative Bank which when presented for collection was returned dishounoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of notice MACA.No.2226/2004 2 Ext.P3 dated March 30, 2000, the accused did not repay the amount which is an offence punishable under Section 138 of Negotiable Instruments Act. 3. On receipt of the complaint, the learned Magistrate recorded the sworn statement of the complainant PW1 and took cognizance of the offence. The accused on appearance before the trial court pleaded not guilty to a charge under Section 138 of Negotiable Instruments Act. PWs 1 and 2 were examined and Exts.P1 to P5 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the accused denied the entire transaction. No defence evidence was adduced. 4. The learned Magistrate on an appreciation of evidence found the revision petitioner guilty of the offence punishable under Section 138 of Negotiable Instruments Act , convicted him thereunder and sentenced him as aforesaid which is confirmed in appeal. The accused has now come up in revision challenging his conviction and sentence. 5. Heard the counsel for the revision petitioner and the MACA.No.2226/2004 3 counsel for the revision first respondent. 6. The following points arise for consideration : 1) Whether the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act rendered by the trial court which is confirmed in appeal can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? Point No.1 7. Complainant testified in terms of the complaint as PW1 before the trial court. Nothing was brought out during his cross examination to disbelieve his evidence. Further his evidence is supported by PW2, the Bank Manager and Exts.P1 to P5. 8. The case of the accused as suggested during cross examination of PW1 and as stated by him when questioned under Section 313 Cr.P.C. was that he issued only a blank signed cheque as security for some other transaction which was misused by the complainant. No evidence was adduced by him to prove his case. Therefore, in my view, both the courts below are justified in rejecting the above case of the accused. Further, as the execution of the cheque Ext.P1 was admitted by the accused, presumption as envisaged under MACA.No.2226/2004 4 Section 118 and 139 of Negotiable Instruments Act is available to the complainant. No evidence was adduced by the accused to rebut the above presumption. 9. For all these reasons, I hold that the trial court 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 Negotiable Instruments Act and convicting him thereunder. Therefore I confirm the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act. Point No.2 10. As regards the sentence, the Trial court imposed a sentence of simple imprisonment for one month and to pay a compensation of Rs. 23,000/- which is confirmed in appeal. Taking into consideration the fact that the transaction is of the year 2000, I feel that a sentence of imprisonment till the rising of court and a compensation of Rs.23,000/- as provided under Section 357(3) Cr.P.C. would meet the ends of justice. In the result, revision petition is allowed in part. The conviction MACA.No.2226/2004 5 of the revision petitioner under Section 138 of Negotiable Instruments Act is confirmed. The sentence imposed by the trial court which is confirmed by the lower appellate Court is modified to the effect that he is sentenced to undergo imprisonment till the rising of court and to pay a compensation of Rs. 23,000/- to the complainant as provided under Section 357(3) Cr.P.C., in default to undergo simple imprisonment for two months. Three months time is granted for payment of compensation. The revision petitioner shall surrender before the trial court on or before 20/10/2010 to receive the sentence. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. MACA.No.2226/2004 6