IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 4TH DECEMBER 2009 / 13TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 1473 of 2001() ------------------------------ CRA.456/2001 of SPL.COURT SPE/CBI-II & IV ADDL.SESSIONS COURT, ERNAKULAM CC.626/1997 of JUDL.MAGISTRATE OF FIRST CLASS-I, ERNAKULAM .................... REVN. PETITIONER(S): APPELLANT - ACCUSED --------------------- MATHAI, S/O. KURIAKOSE, KUTTIKATTIL, KUNNAKKAL KARA, VALAKOM VILLATE. BY ADV. SRI.V.G.ARUN SRI.S.K.HARISH RESPONDENT(S): RESPONDENTS - COMPLAINANT & STATE --------------- 1. GIGI MATHEW, MARAKKARAYIL HOUSE, ENANALLOOR P.O., WEST PUNNAMATTOM, MUVATTUPUZHA. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. SRI.JOHN JOSEPH(ROY) FOR R1 R2 BY PUBLIC PROSECUTOR SRI C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P.1473 of 2001 ------------------------------------------------------ Dated: DECEMBER 4, 2009 ORDER The revision petitioner is the accused in C.C.No.626/1997 of the Judicial First Class Magistrate Court-I, Muvattupuzha, and the appellant in Crl.A.No.456/2001 of IVth Additional Sessions Court, Ernakulam. He was convicted under sec.138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for one month and also to pay a fine of Rs.5000/-, in default to undergo simple imprisonment for 15 days. Out of the fine amount, Rs.3000/- was ordered to be paid as compensation to the complainant. On appeal the conviction and sentence of the accused was confirmed. 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 him as PW.1 before the trial court and as detailed in the complaint is that the accused borrowed Rs.45000/- from him and to discharge that liability, he issued the cheque Ext.P1 dated March 12, 1997 drawn on the State Bank of Travancore, Valakom Branch, 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 notice Ext.P4 dated April 21, 1997, the accused did not repay the amount, which is an offence punishable under sec.138 of the CRL. R.P.1473 of 2001 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. PWs.1 and 2 were examined and Exts.P1 to P8 were marked on the side of the complainant. When questioned under sec.313 Cr.P.C. the accused stated that a blank signed cheque was entrusted to the complainant as a security for the chitty amount received by him from PW.1 which was misused by PW.1 and created Ext.P1. No defence evidence was adduced. 4. The trial court on an appreciation of evidence found the accused/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 up in revision challenging his conviction and sentence. 5. Heard the learned 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? CRL. R.P.1473 of 2001 3 II. Whether the sentence imposed is excessive or unduly harsh? Point No.I 7. The complainant was examined as PW.1 and the Bank Manager as PW.2 before the trial court and Exts.P1 to P8 were marked to prove the case of the complainant. I have gone through the evidence of PW.1. No serious discrepancies were pointed out to discredit his evidence. Further his evidence is supported by Exts.P1 to P9 and PW.2, the Bank Manager. 8. The case of the accused when questioned under sec.313 Cr.P.C. was that he has given a blank signed cheque which was misused by the complainant and created Ext.P1. There is no substance in the above contention. He did not adduce any evidence to prove the same. He did not even care to send a reply to the notice sent by the complainant. Therefore the trial court as well as the lower appellate Court is perfectly justified in rejecting his contention. 9. For all these reasons I hold that the trial court could as well as the lower appellate court are perfectly justified in accepting the evidence of PW.1 and in coming to the conclusion that the accused has committed an offence punishable under sec.138 of the Negotiable Instruments Act. Therefore the conviction of the accused under sec.138 of the Negotiable Instruments Act is confirmed. Point No. II CRL. R.P.1473 of 2001 4 10. As regard the sentence, the trial court imposed a sentence of simple imprisonment for one month and a fine of Rs.5000/- which is confirmed in appeal. The transaction is of the year 1997. Therefore I feel that a sentence of imprisonment till the rising of court and a fine of Rs 50000/- 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 the accused is sentenced to undergo simple imprisonment till the rising of court and to pay a fine of Rs.50000/-, in default to undergo simple imprisonment for three months. The fine amount, if realised, shall be paid to PW.1/complainant as compensation as provided under sec.357(1) of Cr.P.C.. His bail bonds are cancelled. The accused shall surrender before the trial court on or before 30.12.2009 to receive the sentence. Three months time is granted for payment of fine. P.Q. BARKATH ALI, JUDGE CRL.M.P.6909/2001 Dismissed. 4.12.2009. P.Q. BARKATH ALI, JUDGE CRL. R.P.1473 of 2001 5 mt/-