IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 10TH AUGUST 2010 / 19TH SRAVANA 1932 Crl.Rev.Pet.No. 848 of 2004(A) ------------------------------ CRL.A. 110/2001 OF DISTRICT & SESSIONS COURT, KASARAGOD CC 38/1998 OF JFCM COURT-I, HOSDURG REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- K. SUKUMARAN PANICKER, S/O. GOVINDAN, AGED 39 YEARS, KULANGARA HOUSE, MANIYAT, P.O. MANIYAT, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADV. SRI.M.SANTHOSHKUMAR RESPONDENT(S): RESPONDENTS/COMLPLAINANT & STATE: ------------------------------------------------ 1. KANNAMPATHI KRISHNAN, AGED 72 YEARS, S/O. KOTTAN, MANIYAT, HOSDURG TALUK, KASARAGOD DISTRICT. 2. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.T.K.VIPINDAS FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P. 848 of 2004 ------------------------------------------------------ Dated: AUGUST 10, 2010 ORDER This revision is by the accused in C.C.No.38/1998 on the file of the JFCM Court - I, Hosdurg. He was convicted under sec.138 of the Negotiable Instruments Act and sentenced to undergo rigorous imprisonment for six months by the judgment of the learned Magistrate dated May 15, 2001. On appeal by the accused the Sessions Court, Kasaragod, by judgment dated February 9, 2004 in Crl.A. 110/2001 confirmed his conviction but modified his sentence to the effect that he was sentenced to undergo imprisonment till the rising of court and to pay a compensation of Rs.30,000/- to the complainant, in default to undergo simple imprisonment for two months. The accused has 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 and as stated in the complaint before the trial court in brief is this: The revision petitioner/accused borrowed Rs.30,000/- from him on August 25, 1997 and to discharge that liability, he issued the cheque Ext.P1 dated November 18, 1997 CRL. R.P. 848 of 2004 2 which, when presented for collection, was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank. In spite of the notice Ext.P3 dated December 9, 1997, the accused did not repay the amount. Therefore the complainant filed the complaint under sec.138 of the Negotiable Instruments Act before the trial court. 3. The learned Magistrate, on receipt of the complaint, recorded the sworn statement of the complainant 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 P5 were marked on the side of the complainant. When questioned under sec.313 Cr.P.C. by the trial court, the accused denied the transaction. No defence evidence was adduced. 4. On an appreciation of evidence the learned Magistrate found the accused guilty of the offence punishable under sec.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 as mentioned above. The accused has now come up in revision challenging his conviction and sentence. CRL. R.P. 848 of 2004 3 5. Heard the counsel for the revision petitioner/accused and the revision 1st respondent/complainant. 6. The following points arise for consideration:- I. Whether the conviction of the revision petitioner by the trial court under sec.138 of the Negotiable Instruments Act, which is confirmed in appeal, can be sustained? II. Whether the sentence imposed is excessive or unduly harsh? POINT NO.I 7. The revision 1st respondent/complainant as PW.1 testified in a convincing manner before the trial court in support of his case. Exts.P1 to P5 were marked on his side. PW.2 is the Bank Manager. Nothing was brought out in cross-examination to discredit their evidence. 8. The case of the revision petitioner is that the cheque Ext.P1 was issued by him as a security for the transaction. But no evidence was adduced by him before the trial court to prove his case. Further, as the accused has admitted the execution of Ext.P1, the presumption under secs.118 and 139 of the Negotiable Instruments Act is available for the complainant. No evidence was adduced by the accused to rebut the said presumption. Therefore I am of the view that the trial court as well as the lower appellate court are perfectly justified in accepting the evidence of the complainant and coming to the CRL. R.P. 848 of 2004 4 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 9. Though the trial court sentenced the accused to undergo rigorous imprisonment for six months, the lower appellate court modified the sentence to imprisonment till the rising of court and to pay a compensation of Rs.30,000/- to the complainant. I find no special reason to reduce the sentence. In the result, confirming the conviction and sentence of the revision petitioner/accused by the trial court which is confirmed by the lower appellate court, the revision petition is dismissed. Two months time is granted for payment of compensation. The accused/revision petitioner shall surrender before the trial court on or before 31.8.2010 to undergo the sentence. The amount, if any, deposited by the accused before the trial court shall be adjusted towards the compensation amount ordered to be paid. His bail bonds are cancelled. P.Q. BARKATH ALI, JUDGE mt/-