IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 18TH DECEMBER 2009 / 27TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 1505 of 2002() ------------------------------ CC.1367/1997 of JUDL.MAGISTRATE OF FIRST CLASS-I, ERNAKULAM CRA.189/2000 of ADDL.SESSIONS COURT, (ADHOC-I), ERNAKULAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- KARUNAKARAN, S/O. NARAYANAN, PUTHUKULATHIL HOUSE, EDAKKATTUVAYAL P.O., ARAKUNNAM, ERNAKULAM. BY ADV. SRI.ABRAHAM JOHN SRI.SREEKUMAR D.MENON RESPONDENT(S): COMPLAINANT & STATE: ----------------------------------- 1. P.C.RAJAN, S/O. P.T.CHERIAN, PONODATHU HOUSE, EDAKKATTUVAYAL P.O., ARAKKUNNAM, ERNAKULAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, ERNAKULAM. PUBLIC PROSECUTOR SMT.REKHA C. NAIR SRI.ELDO KURIAKOSE FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.1505 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of November, 2009 ORDER Revision petitioner is the accused in C.C.No.1367/1997 of Judicial First Class Magistrate I, Ernakulam and appellant in Crl.Appeal No.189/2000 of Additional Sessions Judge, Adhoc - I, Ernakulam. He was convicted under Section 138 of Negotiable Instruments Act and was sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 5,000/-, in default, to undergo simple imprisonment for two months by the trial court. Out of the fine amount, Rs. 2,000/- was ordered to be paid to the complainant as compensation. On appeal by the accused, his conviction was confirmed, but the sentence was modified to simple imprisonment for three months and and to pay a fine of Rs. 5,000/-. 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 complainant has borrowed Rs. 40,000/- from the complainant and Crl.R.P.No.1505/02 Page numbers to discharge that liability, he issued the cheque Ext.P1 for the said amount on September 9, 1997 drawn on the Piravam branch of Ernakulam District Co-operative Bank Ltd. 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 the notice Ext.P2 dated November 3, 1997, 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. PW 1 was examined and Exts.P1 to P6 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 trial court 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 Crl.R.P.No.1505/02 Page numbers him as aforesaid. On appeal his conviction was confirmed but the sentence was modified as mentioned above. The accused has now come up in revision challenging his conviction and sentence. 5. Heard the counsel for the revision petitioner and first revision 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. The complainant as PW1 testified in terms of the complaint before the trial court. Complainant has produced Exts.P1 to P6 before the trial court. I have gone through the evidence of PW1. Nothing was brought out during his cross examination to disbelieve his evidence. Further his evidence is supported by Exts.P1 to P6. 8. The case of the accused was that he has no direct Crl.R.P.No.1505/02 Page numbers transaction with the complainant, that he has transaction with one Ahokan, to whom he has issued s signed blank cheque and that the said Ashokan in collusion with the complainant misused that cheque and created Ext.P1. No evidence was adduced by the accused to prove the his case. As the accused has admitted the issuance of cheque, the presumption under Section 118 and 139 of Negotiable Instruments Act is available for the complainant. No evidence was adduced by the accused to rebut the above presumption. For all these reasons, I am inclined to hold that trial court as well as the lower appellate court is justified in accepting the evidence of PW 1 and coming to the conclusion that accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. Therefore, I confirm the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act. Point No.2 9. Regarding the sentence, the trial court imposed a sentence of simple imprisonment for six months and to pay a fine of Rs 5,000/-. On appeal, the lower appellate court modified the sentence to simple imprisonment for three months and a fine of Rs. 5000/-. Crl.R.P.No.1505/02 Page numbers The transaction is of the year 1997. Further the accused is now aged about 60. Taking into consideration these aspects, I feel that a sentence of imprisonment till the rising of court and a fine of Rs. 50,000/- would meet the ends of justice. In the result, the revision petition is allowed in part. Conviction of the revision petitioner under Section 138 of Negotiable Instruments Act is confirmed. The sentence is modified to the effect that he is sentenced to undergo imprisonment till the rising of court and to pay a fine of Rs. 50,000/-, in default, to undergo simple imprisonment for six months. The fine amount, if realised, shall be paid to the complainant as compensation as provided under Section 357(1) Cr.P.C. The revision petitioner shall surrender before the trial court on or before January 20, 2010 to receive the sentence. Two month's time is granted for payment of fine. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.1505/02 Page numbers Crl.R.P.No.1505/02 Page numbers Crl.R.P.No.1505/02 Page numbers