IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 17TH DECEMBER 2009 / 26TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 1039 of 2002() ------------------------------ CRA.299/1999 of ADDL.SESSIONS COURT, KOTTAYAM ST.555/1995 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- E.JOHN PAULOSE, EDAMANAYIL, ERANJAL ROAD MUTAMBALAM P.O., KOTTAYAM BY ADV. SRI.RAJESH NAIR SRI.BIJOY CHANDRAN RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE ------------------------------------------------ 1. P.M.ABRAHAM, NJALANATTU HOUSE, MANAGING PARTNER, M/S.COLOUR HOUSE, NAGAMPADOM, NJALANATTU BUILDING, S.H.MOUNT P.O., KOTTAYAM 2. STATE OF KERALA, REPRESENTED BBY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ADV. SRI.SURIN GEORGE IPE FOR R1 R2 BY PUBLIC PROSECUTOR SRI K.J.MOHAMED ANZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P. 1039 of 2002 ------------------------------------------------------ Dated: DECEMBER 17, 2009 ORDER The revision petitioner is the accused in C.C.. No.555/1995 of Chief Judicial Magistrate Court, Kottayam, and the appellant in Crl.A.299/1999 of Additional Sessions Court, Kottayam. He was convicted under sec.138 of the Negotiable Instruments Act and was sentenced to undergo simple imprisonment for two months and to pay a fine of Rs.10,000/-, in default to undergo simple imprisonment for a further period of one month. Out of the fine amount, if realised, Rs.7612/- was directed to be paid to the complainant as compensation. On appeal by the accused the lower appellate court confirmed his conviction and sentence. The accused has now come up in revision challenging his conviction and sentence. 2. The case of the complainant as testified by PW.1 before the trial court and as detailed in the complaint is that the complainant is the Managing Partner of M/s. Colour House, Nagampadom conducting business in paints and hardwares, that the accused is a painting contractor, that towards the value of the paint purchased, the accused issued the cheque Ext.P2 dated June 28, 1994 for Rs.7612/- 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.P4, the accused did not repay the amount which is an offence punishable under sec.138 of the Crl.R.P. 1039/02 2 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 entire transaction. The accused was examined as DW.1. 4. The trial court 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 which is confirmed in appeal. The accused has now come up in revision challenging his conviction and sentence. 5. Heard counsel for the revision petitioner and the revision 1st respondent/complainant. 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? Point No.I 7. PW.1 was examined and Exts.P1 to P6 were marked on the Crl.R.P. 1039/02 3 side of the complainant to prove his case. PW.1 testified in terms of the complaint. No serious discrepancies were pointed out in his cross-examination to discredit his evidence. Further his evidence is supported by Exts.P1 to P6. 8. The case of the accused as testified by him as DW.1 before the trial court was that towards the value of the paint purchased from the shop of the complainant, some amount was payable to the complainant and that as security he issued the cheque Ext.P2 asking the complainant not to present the cheque for collection as there was no sufficient fund in his account. No evidence was adduced by him to prove his case. That apart, as the accused has admitted the execution of the cheque Ext.P2, 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 perfectly justified in holding that the accused has committed an offence punishable under sec.138 of the Negotiable Instruments Act. I find no reason to come to a different conclusion. 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. 1039/02 4 of simple imprisonment for two months and to pay a fine of Rs.10,000/-, in default to undergo simple imprisonment for a further period of one month, which is confirmed in appeal. Out of the fine amount, if realised, Rs.7612/- was directed to be paid to the complainant as compensation. The transaction is of the year 1994. Counsel for the revision petitioner submits that the revision petitioner is laid up with paralysis. Therefore I feel that a fine of Rs.12,000/- 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 pay a fine of Rs.12,000/-, in default to undergo simple imprisonment for three months. His bail bonds are cancelled. Two months time is granted for payment of fine. Out of the fine amount, if realised, Rs.7,700/- shall be paid to the de facto complainant/PW.1 as compensation as provided under sec.357(1) of Cr.P.C. P.Q. BARKATH ALI, JUDGE CRL.M.P. 5575 of 2002 Dismissed. 17.12.2009 P.Q. BARKATH ALI, JUDGE mt/-