IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 3RD NOVEMBER 2009 / 12TH KARTHIKA 1931 Crl.Rev.Pet.No. 1520 of 2001 ---------------------------------------- CRL.A.517/2000 OF SESSIONS COURT, ERNAKULAM, CC.NO.492/1997 OF JUDL.MAGISTRATE OF FIRST CLASS, KOLENCHERRY. .................... REVISION PETITIONER/APPELLANT IN CRL.APPEAL NO.517/2000: ---------------------------------------------------------------------------------------------- V.K. PRAKASAN, S/O. KUNJAN, VELLAKKATTIL HOUSE, CHETHICODE.P.O., EDAKKATTUVAYAL VILLAGE, ERNAKULAM DISTRICT. BY ADVS. MR.P.P.JACOB, MR.P.GEORGE VARGHESE. RESPONDENTS/ COMPLAINANT & STATE: ------------------------------------------------------------- 1. N.U. PRABHAKARAN, S/O. UNNIYATHI, CHENNAKKATTU HOUSE, KOLENCHERRY.P.O., ERNAKULAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. MR.C.P.UDAYABHANU, R2 BY PUBLIC PROSECUTOR MR. C.M. KAMMAPPU. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/11/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 1520 of 2001 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 3rd day of November, 2009 O R D E R Revision petitioner is the accused in C.C.No.492 of 1997 of the Judicial Magistrate of First Class, Kolencherry and appellant in Crl.Appeal No.517 of 2000 of the Court of Sessions, Ernakulam. He was convicted under Section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for nine months and to pay compensation of Rs.70,000/- to the complainant as provided under section 357(3) of the Cr.P.C. On appeal, the lower appellate court confirmed his conviction and modified the sentence to undergo imprisonment till the rising of court and to pay compensation of Rs.42,000/- as provided under section 357(3) Cr.P.C., in default to undergo simple imprisonment for a further period of three months. Out of the compensation, an amount of Rs.38,000/- was ordered to be paid to the complainant and the balance was ordered to be credited to the State as compensation. Now the accused has come up in revision challenging his conviction and sentence. CRRP 1520/01 2 2. The case of the prosecution, as testified by the complainant as PW1 before the trial court and as detailed in the complaint, was that to discharge liability of Rs.70,000/-, the accused issued cheque Ext.P1 dated May 7, 1997, drawn on the Amballur Janatha Service Co-operative Bank, which when presented for collection was returned for want of sufficiency of funds in the account of the accused in the bank, that in spite of notice Ext.P3 dated June 2, 1997, the accused did not re-pay the amount, which is an offence punishable under section 138 of the Negotiable Instruments Act. 3. The learned Magistrate on receipt of the complaint recorded the sworn statement of the complainant PW1 and took cognizance of the case. 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 P6 were marked on the side of the complainant. When questioned under Section 313 Cr.P.C., the accused denied the entire transaction. On the side of the accused Ext.D1 was marked. 4. The learned Magistrate on an appreciation of the evidence found the revision petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, convicted him CRRP 1520/01 3 thereunder and sentenced him as aforesaid. On appeal by the accused, the lower appellate court confirmed the conviction, but modified the sentence as found above. Now the accused has come up in revision challenging his conviction and sentence. 5. The following points arise for consideration :- 1) Whether the conviction of the revision petitioner under section 138 of the Negotiable Instruments Act by the trial court, which is confirmed in appeal, can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? 6. The complainant was examined as PW1 and Exts.P1 to P6 were marked on the side of the complainant to prove the guilt of the accused. PW1 testified before the trial court in terms of the complaint. I have gone through the evidence of PW1. I find no suspicious inconsistencies or discrepancies in his evidence so as to discredit his evidence. Further, his evidence is supported by Exts.P1 to P6. Therefore, in my view the trial court is justified in believing the evidence regarding the transaction. The case of the accused was that he gave a signed blank cheque to the complainant, that the complainant CRRP 1520/01 4 had misused the same and that the amount under the cheque is not due to the complainant from the accused. Ext.D1 is photocopy of accounts signed by PW1. PW1 would say that Ext.D1 does not relate to the transaction in question. No evidence is adduced on the side of the accused to prove his case. Further as the accused admits the execution of Ext.P1, presumptions under Sections 118 and 139 are available for the complainant. The accused did not adduce any evidence to rebut the above presumption. Therefore, I hold that the trial court as well as the lower appellate court is perfectly justified in believing the evidence of PW1 and convicting the accused under section 138 of the Negotiable Instruments Act. That being so, the conviction of the revision petitioner/accused under Section 138 of the Negotiable Instruments Act by the trial court which was confirmed in appeal by the lower appellate court is upheld. 7. As regards the sentence, the trial court imposed a sentence of simple imprisonment for nine months and to pay compensation of Rs.70,000/-. The lower appellate court modified the sentence to undergo imprisonment till the rising of court and to pay compensation CRRP 1520/01 5 of Rs.42,000/- (Cheque is for Rs.70,000/-), in default to undergo simple imprisonment for three months and out of the compensation, Rs.38,000/- was ordered to be paid to the complainant as compensation and the balance amount was ordered to be credited to the State as compensation. In the present case, on Ext.D1 PW1 has endorsed that the actual liability was Rs.34,497/-. Therefore, I find no special reason to interfere with the sentence imposed by the lower appellate court. Hence, the revision petition is dismissed. Four months' time is granted for payment of the fine. The bail bonds of the revision petitioner are cancelled. P.Q.BARKATH ALI, JUDGE. mn. CRRP 1520/01 6 P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 1520 of 2001 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= O R D E R 2nd day of November, 2009