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. 758 of 2003() ----------------------------- CRA.45/2002 of SESSIONS COURT, THRISSUR ST.179/1998 of JUDL. MAGISTRTE OF FIRST CLASS COURT-III, THRISSUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- K.S.PRASAD, AGED 32 YEARS, S/O.SHANMUGHAN, KAITHAVALAPPIL HOUSE, ARANATTUKARA VILLAGE, ARANATTUKARA DESOM, THRISSUR TALUK. BY ADV. SRI.C.A.CHACKO SMT.SONIYA.M RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE -------------------------------------- 1. BENNY JOSEPH, KANJIRATHUKUNNEL HOUSE, MATHAICHIRA DESOM, MULAYAM VILLAGE, THRISSUR TALUK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.V.R.KESAVA KAIMAL FOR R1 SRI.N.M.MADHU FOR R1 PUBLIC PROSECUTOR SRI.AMJAD ALI 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.No.758 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of December, 2009 ORDER Revision petitioner is the accused in S.T.No.179/1998 of Judicial Magistrate of First Class III, Thrissur and appellant in Crl.Appeal No.45/2002 of Sessions Court, Thrissur. He was convicted under Section 138 of Negotiable Instruments Act and was sentenced undergo simple imprisonment for three months and to pay a fine of Rs. 5,000/- , in default to undergo simple imprisonment for three months by the trial court. Out of the fine amount, Rs. 3,000/- was ordered to be paid to the complainant as compensation. On appeal , his conviction was confirmed, but the sentence was modified to the effect that he was sentenced to undergo simple imprisonment for 15 days and to pay a compensation of Rs. 70,000/- to the complainant, in default, to undergo simple imprisonment for three months. 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 Crl.R.P.No.758/2003 Page numbers that one T.V.Sasi had subscribed two tickets in the kuri conducted by the complainant firm, that the said Sasi took in auction the kuri amount and executed security bond jointly with the accused for payment of the future subscription, that the said Sasi defaulted subscriptions from November 11, 1996 onwards, that on demand the accused as surety issued Ext.P6 cheque for Rs. 49,575/- drawn on the Aranattukara Oriental Co-operative Bank Ltd. 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.P10 dated November 3, 1997, 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 P15 were marked on the side of the complainant. When questioned under Section 313 of Crl.R.P.No.758/2003 Page numbers Cr.P.C., the accused submitted that the cheque was issued as a security. DWs 1 and 2 were examined on the side of the accused. 4. The trial court 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. On appeal his conviction was confirmed, but sentence was modified as mentioned above. The accused has now come up in revision challenging his conviction and sentence. 5. Heard the counsel for the revision petitioner and revision first respondent. 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 ? Crl.R.P.No.758/2003 Page numbers Point No.1 7. The complainant as PW 1 testified in terms of the complaint and produced Exts.P1 to P15 before the trial court to prove the guilt of the accused. I have gone through his evidence. Nothing was brought out during his cross examination to disbelieve his evidence. Further his evidence is supported by Exts.P1 to P15. 8. The case of the accused as testified by him as DW1 is that the cheque was issued only as a security for the amount due from one Sasi and that therefore the complainant is not entitled to get any amount from him. There is no substance in the above contention. The case of the complainant was that accused and Sasi executed the kuri security bond Ext.P3 and for the defaulted instalments Ext.P4 notice was issued, that on receipt of that notice accused issued the cheque Ext.P6. All these facts are admitted by the accused. That apart no reply was sent by the accused for the notice Ext.P10. DW2, the said Sasi also not disputed those facts. Under these circumstances, the trial court as well as the lower appellate court is right in accepting the evidence of PW1 and coming to the conclusion that Ext.P6 cheque was Crl.R.P.No.758/2003 Page numbers issued by the accused to discharge a legally enforceable liability. Further as the issuance of the cheque Ext.P6 is admitted by the accused, the presumption under Sections 118 and 139 of Negotiable Instruments Act is available for the complainant. Accused has failed to rebut the above presumption effectively. 9. For all these reasons, accepting the evidence adduced on the side of the complainant, I hold that both the courts below are justified in holding that the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. Therefore, the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act is confirmed. Point No.2 10. As regards the sentence, the trial court imposed a sentence of simple imprisonment for three months and to pay a fine of Rs. 5000/-. On appeal, his conviction was confirmed, but sentence was modified to the effect that he was sentenced to undergo simple imprisonment for 15 days and to pay compensation of Rs. 70,000/-, in default, to undergo simple imprisonment for three months. The Crl.R.P.No.758/2003 Page numbers transaction is of the year 1996. Therefore I feel that a sentence of imprisonment till the rising of court and a fine of Rs. 55,000/- would meet the ends of justice. In the result, the revision petition is allowed in part. The conviction of the revision petitioner under Section 138 of Negotiable Instruments Act by the trial court which is confirmed in appeal is upheld. The sentence is modified to the effect that he is sentenced to undergo imprisonment till the rising of court and to pay a fine of Rs. 55,000/-, in default, to undergo simple imprisonment for two months. Fine amount, if realised, Rs. 50,000/- shall be paid to the complainant as compensation as provided under Section 357(1) Cr.P.C. Two month's time is granted for payment of fine. Revision petitioner shall surrender before the trial court on or before January 15, 2010 to receive the sentence. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv.