IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 16TH NOVEMBER 2010 / 25TH KARTHIKA 1932 Crl.Rev.Pet.No. 527 of 2005(A) ------------------------------ CRA.126/2004 of ADDL.SESSIONS COURT(ADHOC II, ERNAKULAM CC.402/2002 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOCHI .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- K.SOMASUNDARAN, S/O.ACHUTHAN, SECTION OFFICER, DOCK LABOUR BOARD DIVISION, KOCHI PORT TRUST. BY ADV. SRI.P.B.ASOKAN SRI.SHERRY J. THOMAS SRI.VINU RAJ RESPONDENT(S): RESPONDENT/COMPLAINANT & STATE --------------------------------------------- 1. N.A.MOHAN SINGH, S/O. AYYAPPAN, NADUVILAZHATHU HOUSE, THEKKEN MALIPPURAM, AZHEEKAL, ERNAKULAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.SANTHOSH KUMAR (PANAMPALLI NAGAR) FOR R1 SRI.T.A.RAJAN FOR R1 PUBLIC PROSECUTOR SRI.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.A.No.2886/2005 in Crl.R.P.No.527 of 2005 Dismissed 16-11-2010 Sd/-, P.Q.BARKATH ALI, JUDGE /True Copy/ P.A.to Judge P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.527 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of November, 2010 ORDER Revision petitioner is the accused in C.C.No.402/2002 of Judicial First Class Magistrate Court I, Kochi and appellant in Crl.Appeal No.126/2004 of Addl. Sessions Court ( Adhoc -II), Ernakulam. He was convicted under Section 138 of Negotiable Instruments Act and was sentenced to undergo simple imprisonment for six months and to pay a compensation of Rs. 2,00,000/- under Section 357(3) Cr.P.C., in default to undergo simple imprisonment for two months by the learned Magistrate by judgment dated January 14, 2004 which is confirmed in appeal by the lower appellate court by judgment dated July 21, 2004. The accused has now come up in revision challenging his conviction and sentence. 2. The case of the first respondent/complainant as testified by him as PW1 before the trial court and as detailed in the complaint was that accused borrowed Rs. 2,00,000/- from the complainant on June 19, 2001 agreeing to repay the same within six months and to discharge that liability, the accused issued the cheque Ext.P1 dated Crl.R.P.No.527/2005 2 March 1, 2002 drawn on the Central Bank of India, Willingdon Island branch for Rs. 2,00,000/- which when presented for collection was returned dishounoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of notice Ext.P4 dated March 13, 2002, the accused did not repay the amount which is an offence punishable under Section 138 of Negotiable Instruments Act. 3. On receipt of the complaint, the learned Magistrate recorded the sworn statement of the complainant PW1 and took cognizance of the offence. The accused on appearance before the trial court pleaded not guilty to a charge under Section 138 of Negotiable Instruments Act. PW 1 was examined and Exts.P1 to P6 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the accused denied the entire transaction . No defence evidence was adduced. 4. The learned Magistrate on an appreciation of evidence found the revision petitioner 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 Crl.R.P.No.527/2005 3 sentence. 5. Heard the counsel for the revision petitioner/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 a convincing manner before the trial court regarding the transaction. Nothing was brought out during his cross examination to disbelieve his evidence. Further his evidence is supported by Exts.P1 to P6. 8. The specific case of the accused as suggested during cross examination of PW1 and as stated by him when questioned under Section 313 Cr.P.C. was that he borrowed only Rs. 25,000/- and as a security he issued a signed blank cheque to the complainant which was misused by the complainant and created Ext.P1. But no evidence was adduced by the accused to prove his case. That apart, as the execution Crl.R.P.No.527/2005 4 of the cheque Ext.P1 was admitted by the accused, presumption as envisaged under Section 118 and 139 of Negotiable Instruments Act is available to the complainant. No reliable evidence was adduced by the accused to rebut the above presumption. 9. For all these reasons, I am of the view that the trial court as well as the lower appellate court are perfectly justified in accepting the evidence of PW1 and finding that the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. 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 and to pay a compensation of Rs. 2,00,000/-, in default to undergo simple imprisonment for a further period of two months which is confirmed in appeal. As the transaction is of the year 2001, a lenient view is taken and I I feel that a sentence of imprisonment till the rising of court and a compensation of Rs.2,00,000/- with default sentence would meet the ends of justice. In the result, revision petition is allowed in part. The conviction Crl.R.P.No.527/2005 5 of the revision petitioner under Section 138 of Negotiable Instruments Act is confirmed. The sentence imposed by the trial court which is confirmed by the lower appellate Court is modified to the effect that revision petitioner is sentenced to undergo imprisonment till the rising of court and to pay a compensation of Rs. 2,00,000/- to the complainant as provided under Section 357(3) Cr.P.C., in default to undergo simple imprisonment for three months. Three months' 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 ordered to be paid. The complainant is permitted to withdraw that amount. Revision petitioner is permitted to pay the balance compensation amount direct to the complainant and produce voucher before the trial court. The revision petitioner shall surrender before the trial court on or before December 15,2010 to receive the sentence. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.527/2005 6