IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 20TH NOVEMBER 2009 / 29TH KARTHIKA 1931 Crl.Rev.Pet.No. 813 of 2003() -------------------------------------- CRA.214/2001 of SESSIONS COURT, THRISSUR CC.634/1996 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THRISSUR ............................................ REVN. PETITIONER(S): APPELLANT/ACCUSED ---------------------------------------------------------------- K.A.SULAIMAN, S/O.KADAMBOTTU AMMUKUNJU, KANJIRANGADI DESOM, KOORKANCHERRY, THRISSUR. BY ADV. SRI.P.VIJAYA BHANU SRI.TONY MATHEW RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. SURESH P.S., S/O.SUBRAMANIAN, PUTHENVEETTIL HOUSE, VATTAPPINI DESOM, NEDUPUZHA P.O., THRISSUR. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.V.RAMKUMAR NAMBIAR R2 BY PUBLIC PROSECUTOR SMT.REKHA.C.NAIR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sou Crl.Rev.Pet.No. 813 of 2003 ORDER IN CRL.M.P. NO.297/2003 IN C.R.R.P. NO.813/2003 DISMISSED. SD/- 20.11.2009 P.Q.BARKATH ALI, JUDGE. // TRUE COPY // C.A. TO JUDGE. sou P.Q. BARKATH ALI, J ---------------------------- Crl.R.P. No.813 of 2003 ---------------------------------------- Dated this the 20th day of November, 2009 O R D E R Revision petitioner is the accused in C.C. No.634/1996 of Judicial I Class Magistrate Court II, Thrissur and appellant in Crl. Appeal No.214/2001 of Sessions Court, Thrissur. The revision petitioner was convicted under section 138 of Negotiable Instrument Act and was sentenced to undergo simple imprisonment of 3 months and to pay a fine of Rs.5,000/- in default, to undergo simple imprisonment for three months. The fine amount if realised was ordered to be paid to the complainant as compensation as provided under section 357(1) Cr.P.C. On appeal his conviction under section 138 of Negotiable Instrument Act was confirmed, but sentence was modified to the effect that he was sentenced to undergo simple imprisonment for 15 days and to pay a compensation of Rs.30,000/- to the complainant, as provided under section 357(3) of Cr.P.C. Now the accused has come up in revision challenging his conviction and sentence. 2. The case of the complainant as testified by him as PW1 before the trial court and as detailed in the complaint was that Crl.R.P. No.813/03 2 the accused had borrowed Rs.25,000/- from him in March, 1996 and to discharge that liability, the accused issued a cheque, Ext.P1 dated October, 11, 1996 for Rs.25,000/- drawn on the account of the accused maintained in Catholic Cyrian Bank, Railway station branch, Thrissur. Which when presented, was returned for want of sufficiency of fund in the account of the accused in the Bank and that in spite of notice, Ext.P3 dated November 19,1996, 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 sworn statement of PW1 and took cognizance of the case. The accused on appearance before the trial court pleaded not guilty to the charge under section 138 of Negotiable Instruments Act. PW1 to 3 were examined and Ext.P1 to P6 were marked on the side of the complainant. When questioned under section 313 of Cr.P.C. by the learned Magistrate the accused submitted that he had entrusted a signed blank cheque as security to the complainant which was misused by him and created Ext.P1. No defence evidence was Crl.R.P. No.813/03 3 adduced. 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 as aforesaid. On appeal, the conviction was confirmed, but the sentence was modified as mentioned above. Now the accused has come up in revision challenging the conviction and sentence. 5. Heard Sri. Raphel, the counsel appearing for the revision petitioner and Mr. Antony Benedict the counsel for the first respondent. 6. The following points arise for consideration: 1) Whether the conviction of the revision petitioner under section 138 of the Negotiable instrument Act 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. PW1 to 3 were examined and Ext.P1 to P6 were marked on the side of the complaint. PW1 testified in terms of Crl.R.P. No.813/03 4 the complaint. PW2 and 3 are the Bank Managers. I have gone through the evidence of PW1. Nothing was brought out to discredit his evidence. Further his evidence is supported by PW2 and 3 and Ext.P1 to P6. 8. The case of the accused when questioned under section 313 Cr.P.C was that he issued a cheque, Ext.P1 as security in favour of one Kuri company which was misused by the complainant and created Ext.P1. No evidence was adduced by the accused to prove his case. Accused admitted issuance of the cheque, Ext.P1. Therefore the presumption under section 138 and 139 of Negotiable Instruments Act are available for the complainant. No evidence was adduced by the accused to rebut the above said presumption. 9. For all these reasons, I am inclined to accept the evidence of PW1 and hold that the accused has issued Ext.P1, cheque to discharge his liability towards the complainant, which when presented for collection was returned for insufficiency of fund in the account of the accused in the Bank and that in spite of notice, the accused did not repay the Crl.R.P. No.813/03 5 amount which is an 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 sentence, the trial court imposed a sentence of simple imprisonment of three months and to pay a fine of Rs.5,000/- in default, to undergo simple imprisonment of three months. The appellate court confirmed the conviction of the revision petitioner and the sentence was modified to simple imprisonment of 15 days and to pay a compensation of Rs.30,000/-. The transaction is of the year 1996. Taking into consideration this aspect, I feel that a sentence of imprisonment till raising of court and a fine of Rs.30,000/- 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 Instrument Act is confirmed. The sentence is modified to the effect that the revision petitioner is sentenced to Crl.R.P. No.813/03 6 undergo simple imprisonment till rising of court and to pay a fine of Rs.30,000/-, in default to undergo simple imprisonment of three months. Fine amount if realised shall be paid to the complainant as compensation as provided under section 357(1) of Cr.P.C. Any amount deposited by the accused before the trial court, shall be adjusted towards fine amount. The complainant will be entitled to withdraw that amount. His bail bonds are cancelled. The revision petitioner shall surrender before the trial court on or before 15.12.2009 to receive the sentence. Two months time is granted for payment of fine amount. (P.Q. BARKATH ALI, JUDGE) sou. Crl.R.P. No.813/03 7 P.Q. BARKATH ALI, J Crl.R.P No.813of 2003 ORDER 20.11.2009