IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 19TH NOVEMBER 2009 / 28TH KARTHIKA 1931 Crl.Rev.Pet.No. 376 of 2002() ----------------------------- CRA.36/2000 of ADDL. SESSIONS COURT (ADHOC), FAST TRACK COURT-I, THRISSUR ST.1213/1996 of JUDL. MAGISTRTE OF FIRST CLASS COURT-III, THRISSUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- ASOKAN S/O.NARAYANAN,VADASSERY HOUSE, MANALUR,THRISSUR DISTRICT BY ADV. SRI.M.K.DILEEP KUMAR RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE ------------------------------------------------ 1. SHAJI M.,S/O.SANKUNNY NAIR, MADATHIL HOUSE,ALAGAPPA NAGAR P.O.,THRISSUR DIST. 2. STATE OF KERALA,REPRESENTED BY DIRECTOR GENERAL OF PROSECUTION,HIGH COURT OF KERALA,ERNAKULAM. ADV. SRI.BABU CHERUKARA FOR R1 SRI.BABY P. ANTONY FOR R1 PUBLIC PROSECUTOR SRI. C.M.KAMAPPU FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl..M.P. No.2646/2002 in Crl.R.P. No. 376/2002 Dismissed 11-11-2009 Sd/-P.Q. Barkath Ali, Judge. /true copy/ P.S. to Judge. P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 376 of 2002 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 19th day of November,2009 O R D E R Revision petitioner is the accused in S.T.No.1213 of 1996 of the Judicial Magistrate of the First Class-III, Thrissur and the appellant in Crl.A.No.36 of 2000 of the Addl. Sessions (Adhoc) Fast Track Court No.I, Thrissur. He was convicted under section 138 of the Negotiable Instruments Act and sentenced to undergo imprisonment till the rising of court and to pay a compensation of Rs.10,000/-, in default to undergo simple imprisonment for three months, which is confirmed in appeal. Now the accused has come up in revision challenging his conviction and sentence. 2. The case of the prosecution, as testified by the complainant as PW1 before the trial court and as detailed in the complaint, was that the accused borrowed Rs.10,000/- from him and to discharge that liability, the accused issued cheque Ext.P1 dated March 1, 1996, drawn on the Catholic Syrian Bank, Thrissur Branch, which when presented for collection was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank, that in spite of notice Ext.P3, the accused did not re- pay the amount, which is an offence punishable under section 138 of the Crl.R.P. 376/02 2 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 the charge under section 138 of the Negotiable Instruments Act. PWs.1 to 3 were examined and Exts.P1 to P9 were marked on the side of the complainant. When the accused was questioned under section 313 Cr.P.C. by the learned Magistrate, he denied the transaction and stated that he had issued a cheque as a security towards the firm of the complainant and misusing that cheque the complainant created Ext.P1. DWs.1 to 3 were examined and Exts.D1 to D6 were marked on his side. The trial court, on an appreciation of the evidence, found the accused guilty of the offence punishable under section 138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him as afore said. On appeal by the accused, the lower appellate court confirmed his conviction and sentence. The accused has come up in revision challenging his conviction and sentence. 4. Heard the counsel for the revision petitioner and the counsel for the second respondent. 5. The following points arise for consideration :- 1) Whether the conviction of the revision petitioner by the trial court under section 138 of the Negotiable Crl.R.P. 376/02 3 Instruments Act, which was confirmed in appeal by the lower appellate court, can be sustained? 2) Whether the sentence imposed against the revision petitioner is excessive or unduly harsh? 6. PW1 the complainant testified in terms of the complaint before the trial court. I have gone through the evidence of PW1. Nothing was brought out in cross-examination to discredit his evidence. Further, his evidence is supported by Exts.P1 to P9 and PWs.2 and 3, the Managers of the bank. Their evidence is also supported by Exts.P1 to P9. Therefore, I am of the view that both the courts below are right in believing the evidence of PWs.1 to 3 and holding that cheque Ext.P1 was issued by the revision petitioner to discharge his liability towards the complainant, which when presented for collection was dishonoured for want of sufficiency of funds in the account of the revision petitioner in the bank. 7. The case of the revision petitioner was that Ext.P1 was issued as a security towards the firm of the complainant, which is emphatically denied by PW1. To prove his case the accused besides himself as DW1examined DWs.2 and 3. DW2 is another Bank Manager to prove the dealings. DW3 is the Manager of Elite Fabrics to show that complainant was not employed there during the relevant period. Both the courts below have found that the evidence adduced by the accused is not sufficient to prove that PW1 has any Crl.R.P. 376/02 4 share business and Ext.P1 was issued as security. Further PW1 has admitted the execution of Ext.P1. Therefore, presumption under sections 118 and 139 of the Negotiable Instruments Act is available for the complainant. Accused has failed to rebut the above presumption effectively. For all these reasons, I am inclined to accept the finding of the both the courts below that the accused has issued cheque Ext.P1 to discharge the liability towards the complainant and that in spite of notice, he did not repay the amount, which is an offence punishable under section 138 of the Negotiable Instruments Act. 8. As regards the sentence, the trial court has imposed a sentence of imprisonment till the rising of court and compensation of Rs.10,000/-, in default to undergo simple imprisonment for three months. I find no reason to reduce the sentence. 9. In the result, confirming the conviction of the revision petitioner under section 138 of the Negotiable Instruments Act, the revision petition is dismissed. His bail bonds are cancelled. One month's time is granted for payment of fine. P.Q.BARKATH ALI, JUDGE. mn. Crl.R.P. 376/02 5 P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 376 of 2002 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= O R D E R 18-11-2009