IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 28TH OCTOBER 2009 / 6TH KARTHIKA 1931 Crl.Rev.Pet.No. 705 of 2001() ----------------------------- CRA.554/2000 of SESSIONS COURT, ERNAKULAM CC.364/1998 of JUDL.MAGISTRATE OF FIRST CLASS, KOLENCHERRY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED:- --------------------- SHINE AUGUSTINE, S/O.AUGUSTINE, PARAKATTEL HOUSE, MAILAKOMBU PO, THODUPUZHA. BY ADV. SRI.K.A.IDICULLA SMT.PUSHPY B.MURICKEN RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE:- --------------- 1. MATHEWS THOMAS, S/O.THOMAS, KARAVETTE MANGALATH VEEDU, OORAMANA P.O., MUVATTUPUZHA P.O. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT. REKHA C. NAIR SRI.P.V.SANTHOSH JOSE FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl..M.P. No. 3335/01 in Crl.R.P. No. 705/2001 Dismissed 28 -10-2009 Sd/-P.Q. Barkath Ali, Judge. /true copy/ P.S. to Judge. P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 705 of 200 1 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 28th day of October, 2009 O R D E R Revision petitioner is the accused in C.C.No.364 of 1998 of the Judicial Magistrate of the First Class, Kolenchery and the appellant in Crl.A.554 of 2000 on the file of the Sessions Court, Ernakulam. He was convicted under section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for one year and to pay compensation of Rs.1 lakh to the complainant. On appeal, the lower appellate court confirmed the conviction and modified the sentence to undergo simple imprisonment for ten days and to pay compensation of Rs.1,10,000/-, out of which Rs.1,05,000/- was ordered to be paid to the complainant as compensation and balance was ordered to be credited to the State as compensation. Now the accused has come up in revision challenging his conviction and sentence. 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 Crl.RP 705/01 2 discharge the liability of Rs.1 lakh towards the complainant, the accused issued cheque Ext.P1 dated December 11, 1997, drawn on the State Bank of Travancore, Kalloorkad 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 in spite of notice Ext.P4 dated March 25, 1998, the accused did not re-pay the amount, which is an offence punishable under section 138 of the Negotiable Instruments Act. 3. On receipt of the complaint, the learned Magistrate recorded the sworn statement of the accused and took cognizance of the offence. 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 P5 were marked on the side of the complainant. When the accused was questioned under section 313 Cr.P.C. by the learned Magistrate, he denied the entire transaction. DWs.1 to 3 were examined on his side. The trial court, on an appreciation of the evidence, found the accused guilty of the offence punishable under section 138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him as afore said. On appeal by the accused, the conviction was confirmed, but the sentence was modified as aforesaid. The accused has come up in revision challenging his conviction and sentence. Crl.RP 705/01 3 4. The following points arise for consideration :- 1) Whether the conviction of the revision petitioner by the trial court under section 138 of the Negotiable Instruments Act, which was confirmed in appeal by the lower appellate court, can be sustained? 2) Whether the sentence imposed against the revision petitioner is excessive or unduly harsh? 5. PW1 the complainant testified in terms of the complaint before the trial court. I have gone through the evidence of PW1. Nothing was brought out in cross-examination to discredit his evidence. Further, his evidence is supported by Exts.P1 to P5. That apart, execution of cheque Ext.P1 is admitted by the accused. Therefore, presumptions under sections 118 and 139 of the Negotiable Instruments Act are available to the complainant. The accused was not able to rebut the presumption effectively. An attempt was made on the side of the accused by examining DWs.1 to 3 to show that the cheque was issued as a security for the work undertaken by him, but both the courts below have rejected the sane. I find no reason to come to a different conclusion. For all these reasons, I feel that both the courts below are right in believing the evidence of PW1 and finding the revision petitioner guilty of the offence punishable under section 138 of the Negotiable Instruments Act. 6. As regards the sentence, the trial court has imposed sentence of Crl.RP 705/01 4 simple imprisonment for one year and directed to pay compensation of Rs.1 lakh to the complainant. On appeal, the sentence was reduced to simple imprisonment for ten days and to pay compensation of Rs.1,10,000/- under section 357(3) of the Cr.P.C., in default to undergo simple imprisonment for three months and out of the compensation Rs.1,05,000/- was ordered to be paid to the complainant and the balance was ordered to be credited to the State as compensation. Taking into consideration the fact that the transaction was of the year 1997, I feel that sentence imprisonment till the rising of court and fine of Rs.1 lakh, in default to undergo simple imprisonment for three months would meet the ends of justice 7. In the result, the revision petition is allowed in part. The conviction of the revision petitioner under section 138 of the Negotiable Instruments Act, rendered by the trial court, which is confirmed in appeal, is upheld. The sentence imposed on the revision petitioner is modified to the effect that the revision petitioner is sentenced to undergo imprisonment till the rising of the court and to pay fine of Rs.1 lakh, in default to undergo simple imprisonment for three months. The fine amount, if realized, shall be paid to PW1 as compensation as provided under section 357(1) of the Cr.P.C. His bail bonds are canceleld. Two months’ time is granted for payment of fine. Crl.RP 705/01 5 The revision petitioner shall surrender before the trial ocurt on or before 30-11-2009 to receive the sentence. P.Q.BARKATH ALI, JUDGE. mn. Crl.RP 705/01 6 P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 705 of 200 1 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= O R D E R 28 th day of October, 2009