IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 9TH DECEMBER 2009 / 18TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 669 of 2002() ----------------------------- CRA.181/2000 of ADDL.SESSIONS COURT (ADHOC), ALAPPUZHA CC.238/1998 of JUDL.MAGISTRATE OF FIRST CLASS, AMABALAPUZHA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- ANTONY ALIAS SUNNY, AGED 41 YEARS, S/O.MATHEW, MELEPADAVIL HOUSE, KARIKUZHI, THALAVADI, TRIVANDRUM. BY ADV. SRI.R.SANTHOSH BABU RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE ------------------------------------ 1. M.K.PANKAJAKSHI, MUTTUNKAL CHIRA VEEDU, THALAVADI SOUTH, THALAVADY, ALAPPUZHA DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.S.VIJAYAKUMAR FOR R1 R2 BY PUBLIC PROSECUTOR SRI K.J.MUHAMED ANZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P. 669 of 2002 ------------------------------------------------------ Dated: DECEMBER 9, 2009 ORDER The revision petitioner is the accused in C.C. No.238/1998 of Judicial First Class Magistrate Court-I, Ambalapuzha, and the appellant in Crl.A.181/2000 of Additional Sessions Court, Adhoc-I (Fast Track), Alappuzha. He was convicted under sec.138 of the Negotiable Instruments Act and was sentenced to undergo rigorous imprisonment for three months. On appeal by the accused the lower appellate court confirmed his conviction, but modified the sentence to simple imprisonment for three months. The accused has now come up in revision challenging his conviction and sentence. 2. The case of the revision 1st respondent/complainant as testified by her as PW.1 before the trial court and as detailed in the complaint is that the accused borrowed Rs.40,000/- from the complainant on April 23, 1998 for his business purpose and to discharge that liability the accused issued the cheque Ext.P1 on that date itself drawn on the State Bank of Travancore, Arthissery Branch which, when presented for collection, was returned dishonoured for want of sufficiency of funds in the account of the revision petitioner in the bank and that in spite of the notice Ext.P3 dated May 6, 1998, the accused did not repay the amount, which is an offence punishable Crl.R.P.669/2002 2 under sec.138 of the Negotiable Instruments Act. 3. On receipt of the complaint the learned magistrate recorded the sworn statement of the complainant/PW.1 and took cognizance of the offence. The accused on appearance before the trial court pleaded not guilty to the charge under sec.138 of the Negotiable Instruments Act. PW.1 was examined and Exts.P1 to P6 were marked on the side of the complainant. When questioned under sec.313 Cr.P.C. by the trial court, the accused denied the transaction. No defence evidence was adduced. 4. The learned magistrate on an appreciation of evidence found the revision petitioner guilty of the offence punishable under sec.138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid. On appeal by the accused, the lower appellate court confirmed his conviction, but modified the sentence as aforesaid. The accused has now come up in revision challenging his conviction and sentence. 5. Heard the counsel for the revision petitioner and the revision 1st respondent. 6. The following points arise for consideration:- I. Whether the conviction of the revision petitioner under sec.138 of the Negotiable Instruments Act can be sustained? II. Whether the sentence imposed is excessive or unduly harsh? Crl.R.P.669/2002 3 Point No.I 7. The complainant as PW.1 testified in terms of the complaint before the trial court. Nothing was brought out during her cross-examination to discredit her evidence. Further her evidence is supported by Exts.P1 to P6. 8. When questioned under sec.313 Cr.P.C. by the trial court, the case of the accused was that the wife of the accused borrowed Rs.5000/- from the husband of the complainant who was a Police Constable and as security Ext.P1 cheque was issued and that the complainant has misused the same and created Ext.P1 cheque. No evidence was adduced on the side of the accused to prove his case. That apart, as the accused has admitted the execution of the cheque Ext.P1, the presumption under secs.118 and 139 of the Negotiable Instruments Act is available to the complainant. The accused did not adduce any evidence to rebut the above presumption. 9. For all these reasons accepting the evidence of PW.1 I hold that the trial court as well as the lower appellate court is justified in holding that the accused has committed an offence punishable under sec.138 of the Negotiable Instruments Act. The conviction of the revision petitioner/accused under sec.138 of the Negotiable Instruments Act is confirmed. Point No.II 10. As regards the sentence, the trial court imposed a sentence Crl.R.P.669/2002 4 of rigorous imprisonment for three months and the lower appellate court modified the sentence to simple imprisonment for three months. 11. The transaction is of the year 1998. Therefore I feel that a sentence of imprisonment till the rising of court and a fine of Rs.40,000/- would meet the ends of justice. In the result, the revision petition is allowed in part. The conviction of the revision petitioner under sec.138 of the 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.40,000/-, in default to undergo simple imprisonment for three months. His bail bonds are cancelled. Two months time is granted for payment of fine. The fine amount, if realised, shall be paid to the complainant as compensation as provided under sec.357(1) of Cr.P.C. If any amount is deposited by the revision petitioner before the trial court, it shall be adjusted towards the fine amount. The accused/revision petitioner shall surrender before the trial court on or before 30.12.2009 to receive the sentence. P.Q. BARKATH ALI, JUDGE CRL.M.P.4075 of 2002 Dismissed. 9.12.2009. P.Q. BARKATH ALI, JUDGE mt/-