IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 21ST DECEMBER 2009 / 30TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 850 of 2003() ----------------------------- CRA.1/2000 of ADDL.SESSIONS COURT (SPL.COURT), KOTTAYAM CC.632/1997 of JUDL. MAGISTRATE OF FIRST CLASS, VAIKOM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- RAJUMON, PUTHUVELIL HOUSE, KUDAVACHOOR, ETTUPURAM WARD NO.1, VANCHOOR VILLAGE, VAIKOM. BY ADV. SRI.M.K.CHANDRA MOHANDAS RESPONDENT(S): RESPONDENT/COMPLAINANT & STATE --------------------------------------------- 1. SATHEESAN, S/O.GOPALAN, PULPARAYIL HOUSE, KUDAVACHOOR KARA, VECHOOR VILLAGE, VAIKOM. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.M.NATESAN FOR R1 PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.850 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of December, 2009 ORDER Revision petitioner is the accused in C.C.No.632/1997 of Judicial First Class Magistrate Court, Vaikkom and appellant in Crl.Appeal No.1/2000 of Sessions Court (Spl) Kottayam. He was convicted under Section 138 of Negotiable Instruments Act and was sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 5000/- in default to undergo simple imprisonment for a further period of one month by the trial court. On appeal, his conviction was confirmed, but sentence was modified to the effect that he was sentenced to undergo simple imprisonment for one month and to pay a compensation of Rs. 17000/-. 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. 15,000/- from him on January 1, 1997 and to discharge that liability the accused issued the cheque Ext.P1 on the Crl.R.P.No.850/03 Page numbers same date 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.P3 dated May 16, 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 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 and submitted that he borrowed only Rs. 5000/- from PW1 and as security he gave a signed blank cheque which was misused by PW1 and created Ext.P1. On the side of the accused, the accused was examined as DW1 and he examined DWs 2 and 3 and marked Ext.D1. 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 Crl.R.P.No.850/03 Page numbers him as aforesaid. On appeal his conviction was confirmed but the sentence was modified as aforesaid. The accused has now come up in revision challenging his conviction and sentence. 5. Heard the counsel for the revision petitioner and first revision 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 confirmed in appeal can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? Point No.1 7. The complainant as PW1 testified in terms of the complaint before the trial court. Nothing was brought out during his cross examination to disbelieve his evidence. Further his evidence is supported by Exts.P1 to P6. 8. The case of the accused was that he borrowed only Rs. 5000/- from PW1 and as a security he issued a signed blank cheque Crl.R.P.No.850/03 Page numbers which was misused by PW1 and created Ext.P1. In an attempt to prove his case, he got himself examined as DW1 and examined DWs 2 and 3. DW2 is the friend of the accused and DW3 is the Secretary of Indian Dalit Federation. The trial court as well as the lower appellate court has chosen to reject their evidence. On going through their evidence, I find no special reason to come to a different conclusion. Further the the issuance of cheque Ext.P1 is admitted by the accused. That being so, the presumption envisaged under Sections 118 and 139 of Negotiable Instruments Act is available for the complainant. No satisfactory evidence was adduced on the side of the accused to rebut the above presumption. For all these reasons, I hold that the trial court as well as the lower appellate court is perfectly justified in accepting the evidence of PW1 and rejecting the evidence of DWs 1 to 3 and coming to the conclusion 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 8. Regarding the sentence, the trial court imposed a sentence Crl.R.P.No.850/03 Page numbers of simple imprisonment for six months and to pay a fine of Rs. 5000/- which was modified by the lower appellate court to simple imprisonment for one month and to pay a compensation of Rs. 17000/-. The transaction is of the year 1993. Therefore, I feel that a sentence of imprisonment till the rising of court and a compensation of Rs. 20,000/- would meet the ends of justice. In the result, the revision petition is allowed in part. Conviction of the revision petitioner under Section 138 of Negotiable Instruments Act is confirmed. The sentence is modified to the effect that he is sentenced to undergo imprisonment till the rising of court and ordered to pay a compensation of Rs. 20,000/- as provided under Section 357 (3) Cr.P.C, in default to undergo simple imprisonment for two months. The revision petitioner shall surrender before the trial court on or before January 30, 2010 to receive the sentence. Two month's time is granted for payment of fine. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.850/03 Page numbers