IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 18TH FEBRUARY 2011 / 29TH MAGHA 1932 Crl.Rev.Pet.No. 685 of 2005(A) ------------------------------ CRA.570/2003 of III ADDL. SESSIONS COURT (ADHOC), FAST TRACK COURT NO.1, THRISSUR CC.977/2001 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, THRISSUR .................... REVN. PETITIONER(S): APPELLANT/2ND ACCUSED. ------------------------------------------- A.J.GEORGE, AKKARA HOUSE, LALUR, ELTHURUTH P.O. THRISSUR DISTRICT. . BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENT(S): COMPLAINANT AND STATE. ------------------------------------- 1. ROSE JOHNY, D/O.ANTONY, PUDUKKADAN HOUSE KIZHAKKUMAPATTUKARA, CHEMBUKKAVU VILLAGE, THRISSUR DISTRICT. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.VIJAYA BHANU FOR R1 SRI.P.M.RAFIQ FOR R1 P.P. SRI. MUHAMMED PUZHAKKARA FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Crl.R.P. No. 685 of 2005 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 18th February, 2011 O R D E R Revision petitioner is the 2nd accused in C.C. No. 977 of 2001 on the file of the Judicial Magistrate of the First Class-I, Thrissur and the appellant in Crl.A.No. 570 of 2003 on the file of the III Addl. Sessions Court (Adhoc), Fast Track Court No.I, Thrissur. He was convicted under section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for four months and to pay a compensation of Rs.1 lakh to the complainant, in default to undergo simple imprisonment for three months by the trial court. On appeal, the lower appellate court confirmed the his conviction but modified the sentence to imprisonment till the rising of the court and to pay a compensation of Rs.1 lakh to the complainant, in default to undergo simple imprisonment for three months. The 2nd accused has come up in revision challenging his conviction and sentence. CRRP 685/2005 2 2. The case of the 1st respondent/complainant, as testified by him as PW1 before the trial court and as detailed in the complaint, in brief is this:- The 1st accused was the Chairman and 2nd accused was the General Manager of Venad Kuries and Loans (P) Ltd. The complainant was the subscriber to a kury conducted by the accused persons. The complainant remitted full subscription. The company owed a sum of Rs.1 lakh to the complainant and to discharge that liability the 1st accused as the Chairman and 2nd accused as the General Manager of the company issued a cheque Ext.P1 on November 30, 2000. The cheque when presented for collection was returned dishonoured for want of sufficiency of funds in the account of the accused persons in the bank. At the request of the accused persons, the complainant again presented the cheque for collection. But it was returned with the endorsement “account closed”. To Ext.P6 notice dated May 29, 2001, there was no reply from the accused persons. Therefore the complainant filed the private complaint CRRP 685/2005 3 before the trial court under section 138 of the Negotiable Instruments Act. 3. On receipt of the complaint, the learned Magistrate recorded the sworn statement of the complainant and took cognizance of the offence. The 2nd 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 P11 were marked on the side of the complainant before the trial court. The 1st accused though initially appeared before the trial court, later absconded and therefore his case was split up by the trial court. After the evidence of the complainant, the 2nd accused was questioned under section 313 Cr.P.C. by the trial court. He denied the entire transaction. He got himself examined as DW1 and Exts.D1 to D3 were marked on his side. 4. The trial court, on an appreciation of the evidence, found the 2nd accused guilty of the offence punishable under section 138 of the Negotiable Instruments Act, CRRP 685/2005 4 convicted him thereunder and sentenced him as aforesaid. On appeal by the 2nd accused, the lower appellate court confirmed his conviction but modified the sentence to imprisonment till the rising of the court and to pay a compensation of Rs.1 lakh, in default to undergo simple simple imprisonment for three months. The 2nd accused has now come up in revision challenging his conviction and sentence. 5. Heard the learned counsel for the revision petitioner/2nd accused and the learned counsel for the 1st respondent/complainant. 6. The following points arise for consideration :- 1) Whether the conviction of the revision petitioner under section 138 of the Negotiable Instruments Act can be sustained? 2) Whether the sentence imposed is excessive or unduly harsh? 7. Complainant as PW1 testified in terms of the complaint before the trial court. Nothing was brought out in cross-examination to discredit his evidence. Further, his CRRP 685/2005 5 evidence is supported by Exts.P1 to P11. 8. The accused as DW1 testified before the trial court that he was a Clerk in Venad Kuries and Loand (P) Ltd., that he was never the General Manager of the Company, that he had resigned from the company on October 18, 2000, that he did not sign in Ext.P1 cheque and that therefore he is not liable for the amount due under the cheque Ext.P1. The trial court as well as the lower appellate court rejected the case of the revision petitioner/2nd accused. He has admitted his signature in Ext.P1. He has no explanation to offer in not sending any reply to the notice received from the complainant. That apart as the 2nd accused has admitted the issuance of Ext.P1, presumption as envisaged under sections 118 and 139 of the Negotiable Instruments Act is available for the complainant. No reliable evidence was adduced by the 2nd accused to rebut the above presumption. For all these reasons in my view the learned Magistrate as well as the learned Sessions Judge are perfectly justified in accepting the evidence of PW1 and holding that the 2nd CRRP 685/2005 6 accused has committed the offence punishable under section 138 of the Negotiable Instruments Act. Therefore, his conviction under section 138 of the Negotiable Instruments Act is confirmed. 9. As regards the sentence, the trial court has imposed a sentence of simple imprisonment for three months and to pay a compensation of Rs.1 lakhs to the complainant, in default to undergo simple imprisonment for three months. The lower appellate court modified the sentence to imprisonment till the rising of court and to pay a compensation of Rs.1 lakh to the complainant, in default to undergo simple imprisonment for three months. I find no special reason to reduce the sentence. 10. In the result, the revision petition is dismissed. The conviction of the revision petitioner under section 138 of the Negotiable Instruments Act and sentence imposed by the trial court which was modified by the lower appellate court are confirmed. He shall surrender before the trial court on or before 30-3-2011 to suffer the sentence. Four CRRP 685/2005 7 months' time is granted for payment of the compensation. Amount, if any, deposited by the revision petitioner before the trial court shall be adjusted towards the compensation amount ordered to be paid. His bail bonds are cancelled. Send back the records to the trial court forthwith. P.Q.BARKATH ALI, JUDGE. mn. CRRP 685/2005 8 P.Q.BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~ Crl.R.P. No. 1143 of 2001 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~ O R D E R