IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 1ST SEPTEMBER 2011 / 10TH BHADRA 1933 Crl.Rev.Pet.No. 863 of 2002() ----------------------------- C.C.NO.423/1998 ON THE FILE OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASS-I, ALAPPUZHA. CRA.NO.232/2001 OF THE ADDL. SESSIONS COURT, ALAPPUZHA. REVN. PETITIONER(S): APPELLANT/ACCUSED: -------------------------------------------------- A.N. PONNAPPAN, AGED 46 YEARS, ASSARIPARAMBIL, MARARIKULAM NORTH P.O. BY ADV. SRI.M.V.MATHEW RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE: ----------------------------------------------------------- 1. GEETHA S. KURUP, AGED 45 YEARS, SINDHU, MARARIKULAM NORTH P.O., MARARIKULAM NORTH PANCHAYATH, WARD-9. 2. STATE OF KERALA, REP. BY THE CHIEF SECRETARY THROUGH THE PUBLIC PROSECUTOR, ALAPPUZHA. ADV. SRI.B.S.SURESH (CHIRAKKARA) FOR R1 P. P. SRI. M.S.BREEZE FOR R2. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Crl.R.P. No. 863 of 2002 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 1st day of September, 2011 O R D E R Revision petitioner is the accused in C.C.No. 423/1998 on the file of the Judicial Magistrate of the First Class-I, Alappuzha and appellant in Crl.A.No.232/2001 on the file of the Addl. Sessions Court, Alappuzha. He was convicted under section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for three months by the trial court, which was confirmed in appeal by the lower appellate court by judgment dated July 30, 2001. The accused has come up in revision challenging his conviction and sentence. 2. The case of the first respondent/complainant, as testified by her as PW1 before the trial court and as detailed in the complaint, in brief, is this:- The revision petitioner/accused borrowed `11,000/- from the complainant on July 20, 1997 and to discharge that liability, the accused issued Ext.P1 cheque dated July 26, 1997, drawn on the Mararikulam Branch of Federal Bank, which CRRP 863/2002 2 when presented for collection was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank. In spite of notice Ext.P3 dated August 1, 1997, the accused did not re-pay the amount. Therefore, the claimant filed the complaint 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 accused on appearance before the trial court, pleaded not guilty to the charge under section 138 of the Negotiable Instruments Act. The complainant was examined as PW1 and Exts.P1 to P5 were marked on his side. When the accused was questioned under section 313 Cr.P.C. by the learned Magistrate, he submitted that the cheque was actually issued to the husband of the complainant in connection with another transaction. No evidence was adduced by the accused. 4. The trial court, on an appreciation of the evidence, found the accused guilty of the offence punishable under CRRP 863/2002 3 section 138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him as afore said. On appeal by the accused, the lower appellate court confirmed his conviction and sentence. The accused has come up in revision challenging his conviction and sentence. 5. Heard the learned counsel for the revision petitioner and the learned counsel for the first respondent/complainant. 6. The following points arise for consideration :- 1) Whether the conviction of the revision petitioner/accused under section 138 of the Negotiable Instruments Act can be sustained? 2) Whether the sentence imposed on the revision petitioner/accused is excessive or unduly harsh ? 7. Point No.1:- The complainant as PW1 testified in terms of the complaint before the trial court. Nothing was brought out during cross-examination to discredit her evidence. Further, her evidence is supported by Exts.P1 to P5. CRRP 863/2002 4 8. The case of the accused, as suggested during the cross-examination of PW1 and as stated by him when questioned under section 313 Cr.P.C. by the learned Magistrate, was that the cheque was actually issued to the husband of the complainant in connection with another transaction. No evidence was adduced by the accused to substantiate his case. Further as the accused admits execution of Ext.P1, presumption, as envisaged under sections 139 and 118 of the Negotiable Instruments Act, is available to the complainant. No satisfactory evidence was adduced by the accused to rebut the above presumption. Therefore, in my view the trial court as well as the lower appellate court are perfectly justified in believing the evidence of PW1 and convicting the accused under section 138 of the Negotiable Instruments Act. For all these reasons the conviction of the revision petitioner under section 138 of the Negotiable Instruments Act by the trial court which was confirmed in appeal is upheld. 9. As regards the sentence, the counsel for the first CRRP 863/2002 5 respondent submits that the first respondent has received the entire amount covered under Ext.P1 cheque. As the transaction is of the year 1997 and as the entire amount covered under Ext.P1 cheque has been paid by the revision petitioner, a lenient view is taken and I feel that sentence of fine of ` 1,000/- with default sentence would meet the ends of justice 10. In the result, the revision petition is allowed in part. The conviction of the revision petitioner/accused under section 138 of the Negotiable Instruments Act rendered by the trial court which was confirmed in appeal by the lower appellate court is upheld. The sentence imposed on the revision petitioner is modified to the effect that he is sentenced to pay a fine of ` 1,000/-, in default to undergo simple imprisonment for one month. His bail bonds are cancelled. Two months’ time is granted for payment of the fine. P.Q.BARKATH ALI, JUDGE. mn CRRP 863/2002 6 P.Q.BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~ Crl.R.P. No. 863 of 2002 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~ O R D E R 1-9-2011