IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 7TH DECEMBER 2009 / 16TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 2660 of 2003() ------------------------------ CRA.170/2003 of ADDL.SESSIONS JUDGE(ADHOC II) ERNAKULAM CC.1398/1998 of CHIEF JUDL.MAGISTRATE, ERNAKULAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- BABU ANTONY AGED 42 YEARS, S/O. ANTONY, PROPRIETOR, M/S.NATIONAL MACHINES AND EMPLOYMENT CONSULTANTS, SAVAKOTTAPALAM, ALLEPPEY. BY ADV. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. K.G.VISWAMBHARAN, PROPRIETOR, M/S. DEEPA AGENCIES, VALANJAMBALAM, CHITTOOR ROAD, KOCHI, REPRESENTED BY POWER OF ATTORNEY HOLDER, K.K.HARINDRA BABU. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. ADV. SRI.V.V.SIDHARTHAN FOR R1 SRI.T.K.SHAJAHAN FOR R1 PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/12/2009 ALONG WITH CRRP NO. 2733 OF 2003 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.Nos.2660 & 2733 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of December, 2009 ORDER Revision petitioner in both these revision petitions are the same. He was convicted under Section 138 of Negotiable Instruments Act by a common judgment dated 31-10-2002 of the Chief Judicial Magistrate, Ernakulam in C.C.No.1397/1998 and 1398/1998. He was sentenced to undergo simple imprisonment for three months in each case. On appeal by the accused as Crl.Appeal No.169/2003 and 170/2003, the Additional Sessions Judge (Adhoc II), Ernakulam by a common judgment dated 5-8-2003 confirmed the conviction and sentence. The accused has now come up in revision challenging his conviction and sentence. 2. The complainant/revision first respondent is the proprietor of M/S. Deepa Agencies, Valanjambalam , Chittoor Road, Kochi represented by its power of attorney holder . Complainant is doing business in motors, pumps, generators and allied items. Revision petitioner/accused is the proprietor of M/s. National Mechines and Crl.R.P.No.2660/03 Page numbers Employment Consultants doing business in Alleppey. The case of the complainant as testified by its power of attorney holder PW1 and as detailed in the complaint is that towards various items purchased from the complainant, an amount of Rs. 85,097/- and Rs. 54215/- were due to the complainant from the accused for which he issued two cheques Exts.P2 dated April 28, 1998 for Rs. 54215/- and Ext.P3 dated April 25, 1998 for Rs. 30,882/- respectively drawn on the Alleppey branch of Nedungadi 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 notices Exts.P8 and P9 dated 12-05-1998, the accused did not repay the amount which is an offence punishable under Section 138 of Negotiable Instruments Act. 3. On reciept of the complaint, the trial court recorded the sworn statement of the complainant in both the cases and took cognizance of the offence. The accused when appeared before the trial court pleaded not guilty to a charge under Section 138 of Negotiable Instruments Act. When questioned under Section 313 of Cr.P.C. by the trial court, the accused denied the transaction. He would say that Crl.R.P.No.2660/03 Page numbers cheques were issued as security during business transaction. No defence evidence was adduced. 4. As complainant and accused are the same in both the cases and similar questions are involved, the trial court jointly tried both the cases and evidence was recorded in C.C.No.1397/1998. PW1 was examined and Exts.P1 to P14 were marked on the side of the complainant to prove his case. 5. The trial court on an appreciation of evidence found the accused guilty of the offence punishable under Section 138 of Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid which is confirmed in appeal. The accused has now come up in revision challenging his conviction and sentence. 6. As the revision petitioner and revision first respondent are the same in both these revision petitions and as both these revision petitions arise out of a common judgment, these revision petitions are disposed of by a common judgment. 7. Heard the counsel for the revision petitioner and revision first respondent. Crl.R.P.No.2660/03 Page numbers 8. The following points arise for consideration : 1) Whether the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act 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 9. The power of attorney holder of the complainant company was examined as PW1 and Exts. P1 to P14 were marked on the side of the complainant to prove his case. I have gone through the evidence of PW1. Nothing was brought out during his cross examination to discredit his evidence. Further his evidence is supported by Exts.P1 to P14. 10. The case of the accused was that two cheques were issued as security during business transaction and therefore the cheques are without consideration. No evidence was adduced by the accused to prove his case. For all these reasons, I am of the view that both the Crl.R.P.No.2660/03 Page numbers courts below are justified in accepting the evidence of PW1 and finding the accused guilty of the offence punishable under Section 138 of Negotiable Instruments Act. Therefore the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act in both the cases are confirmed. Point No.2 11. Regarding the sentence, the trial court imposed simple imprisonment for two months in each case which is confirmed in appeal. 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.60,000/- in C.C.No.1397/998 and imprisonment till the rising of court and a fine of Rs. 35000/- in C.C.No.1398/1998 would meet the ends of justice. In the result, both the revision petitions are allowed in part. Conviction of the revision petitioner in both the cases under Section 138 of Negotiable Instruments Act by the trial court which is confirmed in appeal are upheld. The sentence imposed in C.C.No.1397/1998 is modified to the effect that he is sentenced to imprisonment till the Crl.R.P.No.2660/03 Page numbers rising of court and to pay a fine of Rs. 60,000/- in default, to undergo simple imprisonment for four months. The sentence imposed in C.C.No.1398/1998 is modified to the effect that revision petitioner is sentenced to undergo imprisonment till the rising of court and to pay a fine of Rs. 35,000/-, in default to undergo simple imprisonment for two months. Two month's time is granted for payment of fine. Revision petitioner shall surrender before the trial court on or before 30-12-2009 to receive the sentence. His bail bonds are cancelled. The fine amount, if realised shall be paid to the complainant as compensation as provided under Section 357(1) Cr.P.C. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.2660/03 Page numbers