IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 21ST DECEMBER 2010 / 30TH AGRAHAYANA 1932 Crl.Rev.Pet.No. 555 of 2005() ------------------------------------------ CRA.572/2003 of I ADDL. SESSIONS COURT, THRISSUR CC.198/2002 of JUDICIAL MAGISTRATE OF FIRST CLASS COURT, WADAKKANCHERY .................... REVN. PETITIONER/APPELLANT/ACCUSED: ---------------------------------------------------------------- K.I. LAZAR, S/O. INASU, KANGAPADAN HOUSE, CHEERACHI DESOM, OLLUR VILLAGE, THRISSUR TALUK. BY ADV. SRI.JIJO PAUL RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: -------------------------------------------------------------------------------------- 1. SHAMSUDEEN, S/O. MUHAMMED HAJI, RAYAMARAKKARVEETTIL, CHIRANOLLUR VILLAGE, TALAPPILLY TALUK, THRISSUR DISTRICT. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. R2 BY PUBLIC PROSECUTOR MR.MUHAMMED PUZHAKKARA. R1 BY ADV. SRI.AVM.SALAHUDIN. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs P.Q.BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Crl.R.P. No. 555 of 2005 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 21st day of December, 2010 O R D E R Revision petitioner is the accused in C.C. No.198 of 2002 on the file of the Judicial Magistrate of the First Class, Wadakkanchery. He was convicted under section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for three months and to pay compensation of Rs.3 lakhs to the complainant by the learned Magistrate by judgment dated August 6, 2003. The accused filed Crl.A. No.572 of 2003 before the Sessions Court, Thrissur challenging his conviction and sentence, while the complainant filed Crl. R. P. No. 30 of 2004 before the same court contending that the learned Magistrate went wrong in not imposing default sentence for the compensation ordered. The learned Sessions Judge by a common judgment confirmed the conviction of the accused but modified the sentence to simple imprisonment for three months and to pay compensation of Rs.3 lakhs to the CRRP 555/2005 2 complainant, in default to undergo simple imprisonment for six months. The accused has now come up in revision challenging his conviction and sentence. 2. The case of the complainant, as testified by him as PW1 before the trial court and as stated in the complaint, is that the accused/revision petitioner borrowed Rs.2,75,000/- from him and to discharge that liability the accused issued Ext.P1 cheque dated February 27, 1999 which when presented for collection was returned for want of sufficiency of funds in the account of the revision petitioner/accused in the bank. In spite of Ext.P4 notice dated March 12, 1999 the accused/revision petitioner did not repay the amount. Therefore, the complainant filed the complaint before the trial court under section 138 of the Negotiable Instruments Act. 3. On receipt of the complaint, the learned Magistrate recorded the sworn statement of the complainant and took cognizance of the case. The accused on appearance before the trial court, pleaded not guilty to the charges under CRRP 555/2005 3 section 138 of the Negotiable Instruments Act. The complainant was examined as PW1 and Exts.P1 to P7 were marked on his side before the trial court. When questioned under section 313 Cr.P.C. by the learned Magistrate,the accused denied the entire transaction. On the side of the accused, DW1 Wadakkanchery Branch Manger of Canara Bank was examined and Ext.D1 was marked. 4. On an appreciation of the evidence, the trial court found that the accused had committed an offence punishable under section 138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid. On appeal by the accused, the learned Sessions Judge confirmed his conviction, but modified the sentence incorporating the default sentence. Now the accused has come up in revision challenging his conviction and sentence. 5. Heard learned counsel for the revision petitioner/accused, learned counsel for the 1st respondent and learned Public Prosecutor . CRRP 555/2005 4 6. The complainant testified in terms of the complaint before the trial court as PW1. Nothing was brought out in cross examination to discredit his evidence. Further his evidence is supported by Exts.P1 to P6. The case of the accused/revision petitioner was of total denial. In an attempt to prove that Ext.P1 cheque was not issued by him, he examined DW1 Bank Manager and marked Ext.B1 accounting opening form. But the evidence of DW1 do not in any way help him to prove his case. The accused has no explanation as to how the cheque came into the possession of the complainant. For all these reasons the trial court is perfectly justified in accepting the evidence of PW1 and holding that the accused has committed the offence punishable under section 138 of the Negotiable Instruments Act and convicted him thereunder. 7. As regards the sentence, the learned Magistrate sentenced the accused to undergo simple imprisonment for three months and to pay compensation of Rs.3 lakhs to the complainant. The learned Sessions Judge modified the CRRP 555/2005 5 sentence incorporating default sentence of six months. Taking into consideration the fact that the transaction was in the year 1999, I feel that imprisonment till rising of court and to pay compensation of Rs.3 lakhs to the complainant with default sentence would meet the ends of justice. 8. In the result, the revision petition is allowed in part. Conviction of the accused/revision petitioner under section 138 of the Negotiable Instruments Act by the trial court and confirmed by the appellate court is affirmed. He is sentenced to undergo imprisonment till rising of court and to pay compensation of Rs.3 lakh to the complainant/1st respondent, in default to undergo simple imprisonment for three months. Three months' time is granted for payment of the compensation. The revision petitioner shall surrender before the trial court on or before January 22, 2011 to suffer the sentence of imprisonment. His bail bonds are cancelled. P.Q.BARKATHALI, JUDGE mn