IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 22ND OCTOBER 2010 / 30TH ASWINA 1932 Crl.Rev.Pet.No. 3177 of 2004(B) ------------------------------- CRA.64/1999 of ADDL. SESSIONS COURT, (ADHOC), PALAKKAD CC.348/1995 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ALATHUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED NO.1 ------------------------------------------- JOHNNY, MOLATH VEEDU, NO.1, KAMMANTHARA, VADAKKANCHERRY, ALATHUR TALUK. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. JOSE, VALLIKATTUKUZHI VEEDU, CHITTADI, VANDAZHI AMSOM OF ALATHUR TALUK, (POWER OF ATTORNEY OF HIS WIFE ELIYAMMA JOSEPH) 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.K.R.KURUP FOR R1 SRI.C.R.SYAMKUMAR FOR R1 PUBLIC PROSECUTOR SRI.SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.A.NO.14471/2004 IN CRL.R.P.NO.3177 OF 2004 DISMISSED 22-10-2010 Sd/-, P.Q.BARKATH ALI, JUDGE P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.3177 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of October, 2010 ORDER Revision petitioner is the first accused in C.C.No.348/1995 on the file of Judicial First Class Magistrate Court, Alathur and appellant in Crl.Appeal No.64/199 of Addl. Sessions Court, Fast Track I, Palakkad. Revision petitioner was convicted under Section 138 of Negotiable Instruments Act and was sentenced to undergo simple imprisonment for six months by the learned Magistrate by judgment dated March 5, 1999 . On appeal, the lower appellate court confirmed his conviction, but modified the sentence to simple imprisonment for two months and to pay a compensation of Rs. 68,000/-, in default to undergo simple imprisonment for one month by judgment dated January 21, 2003. The first accused has now come up in revision challenging his conviction and sentence. 2. The case of the revision first respondent/complainant as testified by him as PW1 before the trial court and as detailed in the Crl.R.P.No.3177/2004 2 complaint in brief is this : Complainant is the power of attorney holder of his wife. The wife of the complainant had entered into an agreement for sale of land with the wife of the revision petitioner/first accused who is the second accused in the complaint. Later the matter was settled and accused 1 and 2 have agreed to pay Rs. 1,18,000/- to the wife of the complainant. On a direction of the second respondent, first accused issued one cheque for Rs. 50,000/- dated April 9, 1995 and another cheque for Rs. 68,000/- dated June 9, 1995. When the wife of the complainant presented the said cheque for encashment, it was returned dishonoured for want of sufficiency of funds in the account of the revision petitioner/first accused in the bank. When notice Ext.P5 dated July 13, 1995 was sent by the wife of the complainant to the accused, though intimation was served on him, he did not receive the notice. Therefore, the first respondent/complainant as power of attorney holder of his wife filed the complaint before the trial court under Section 138 read with Section 143 of Negotiable Instruments Act and under Section 109 and 420 read with Section 34 of IPC. Crl.R.P.No.3177/2004 3 3. The learned Magistrate on receipt of the complaint recorded the sworn statement of the complainant and took cognizance of the offence. Accused 1 and 2 on appearance before the trial court pleaded not guilty to a charge under Section 138 read with Section 142 of Negotiable Instruments Act and under Section 420 of IPC. PWs 1 and 2 were examined and Exts.P1 to P8 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the accused persons submitted that Ext.P2 cheque was obtained from them from the police station under threat, that when first accused was illegally detained in the custody of police, DW1 his father came and released him. The father of the revision petitioner/first accused was examined as DW1 and Ext.D1 was marked on his side. 4. The trial court on an appreciation of evidence found the first accused/revision petitioner guilty of the offence punishable under Section 138 of Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid. The lower appellate court confirmed his conviction, but modified the sentenced as mentioned above. The first accused has now come up in revision challenging his conviction Crl.R.P.No.3177/2004 4 and sentence. The trial court acquitted the revision petitioner/first accused of the charge under Section 420 of IPC. The trial court also acquitted the second accused of all the charges levelled against her. 5. Heard the counsel for the revision petitioner/first accused and the counsel for the revision first respondent/complainant. 6. The following points arise for consideration : 1) Whether the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act rendered 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 7. Complainant as PW1 testified in terms of the complaint before the trial court. Nothing was brought out during his cross examination to disbelieve his evidence. Further his evidence is supported by Exts.P1 to P8 and the evidence of PW2, the Sub Inspector of Police, Vadakkanchery who mediated the matter. 8. The case of the revision petitioner/first accused was that Ext.P2 cheque was obtained from him from the police station under threat and that when he was illegally detained in the police station, his Crl.R.P.No.3177/2004 5 father came and released him. To prove this fact, revision petitioner examined his father as DW1. But his evidence does not in any way help the revision petitioner to prove his case. On the other hand, the evidence of PW2, the Sub Inspector of Police, Vadakkancherry prove the fact that revision petitioner and the complainant settled the matter before him in the police station and the wife of the complainant had agreed to pay Rs. 1,18,000/- to the wife of the first accused. 9. During the cross examination of PW1, it was also suggested to him that for Rs. 1,20,000/- due to the complainant from the first accused, he was summoned to the police station and obtained three signed blank cheques which is denied by PW1. There was no evidence on the side of the accused to prove the said allegation. That apart, as the revision petitioner has admitted the execution of Ext.P2 cheque, presumption under Section 118 and 139 of Negotiable Instruments Act is available to the complainant. No satisfactory evidence was adduced by the revision petitioner to rebut the above presumption. For all these reasons, I hold that the trial court as well as the lower appellate court is perfectly justified in accepting the evidence Crl.R.P.No.3177/2004 6 of PW1 and finding that the revision petitioner has committed the offence punishable under Section 138 of Negotiable Instruments Act and convicting him thereunder. The lower appellate court is also justified in finding that no offence is made out under Section 420 of IPC and acquitting the revision petitioner of the said charge and acquitting the second accused of all the charges levelled against her. Therefore, I confirm the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act. Point No.2 10. As regards the sentence, the Trial court imposed a sentence of simple imprisonment for six months. On appeal, the lower appellate court modified the sentence to simple imprisonment for two months and to pay a compensation of Rs. 68,000/-. Taking into consideration the fact that the transaction is of the year 1994, I feel that a sentence of imprisonment till the rising of court and a compensation of Rs.68,000/- to the complainant with default sentence would meet the ends of justice. In the result, revision petition is allowed in part. The conviction Crl.R.P.No.3177/2004 7 of the revision petitioner under Section 138 of 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 compensation of Rs. 68,000/- to the complainant as provided under Section 357(3) Cr.P.C., in default to undergo simple imprisonment for one month. Two month's time is granted for payment of compensation. The amount, if any, deposited by the revision petitioner before the trial court shall be adjusted towards the compensation amount awarded. The revision petitioner shall surrender before the trial court on or before 15/11/2010 to receive the sentence. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.3177/2004 8