IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 15TH DECEMBER 2009 / 24TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 739 of 2002(B) ------------------------------ ST.2083/1997 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, THRISSUR CRA.112/2000 of SESSIONS COURT, THRISSUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED; ------------------------------------------------------- U.R. TONY, S/O. RAPPAI, OOKEN HOUSE, ANCHANGADI P.O., EAST FORT, THRISSUR. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE: ------------------------------------------------- 1. JOHY, S/O. VAZHAPARAMBIL ANTONY, MANAGING DIRECTOR, JANAVIKAS KURIES (P) LTD., PALLIKULAM ROAD, THRISSUR. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.K.J.MOHAMMED ANZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.739 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of December, 2009 ORDER Revision petitioner is the accused in S.T.No.2083/1997 of Judicial Magistrate of First Class, Thrissur and appellant in Crl.Appeal No.112/2001 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. 2,000/-, in default to undergo simple imprisonment for a further period of three months by the trial court. The revision petitioner was also directed to pay a compensation of Rs.3,000/- to the complainant, in default, to undergo simple imprisonment for three months. On appeal by the accused, the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act was confirmed. But the sentence was modified to the effect that he was sentenced to undergo simple imprisonment for 15 days and was directed to pay a compensation of Rs. 13,900/- to the complainant . The accused has Crl.R.P.No.739/2002 Page numbers 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 was that accused bid in auction the kuri from the complainant's firm and subsequently defaulted in remitting the instalments and that for the amount due accused issued the cheque Ext.P1 dated May 10, 1997 for Rs. 13856.45/- drawn on the Chaldean Syrian College Extension counter of South Indian 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.P5 dated 19-05-1997, 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 P9 were marked on the side of the complainant. When questioned under Section 313 of Crl.R.P.No.739/2002 Page numbers Cr.P.C., the accused denied the transaction. Accused got himself examined as DW1 on his side. 4. The learned Magistrate 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.739/2002 Page numbers Point No.1 7. Complainant as PW1 testified in terms of the complaint before the trial court. No serious discrepancies or inconsistencies were brought out during his cross examination to discredit his evidence. Further his evidence is supported by Exts.P1 to P9. 8. The specific case of the accused was that Ext.P1 cheque was issued as security for the kuri amount received from the complainant company. Except the interested version of DW1, the accused, there was no other evidence to prove his case. That part, as the accused has admitted the execution of Ext.P1 cheque, presumptions under Section 118 and 139 of Negotiable Instruments Act are available for the complainant. The accused has failed to rebut the above presumptions effectively. For all these reasons, I am inclined to confirm the findings of both the courts below 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 Crl.R.P.No.739/2002 Page numbers 9. As regards the sentence, the trial court sentenced the accused to undergo simple imprisonment for three months and to pay a fine of Rs. 2,000/-. The revision petitioner was also directed to pay a compensation of Rs. 3,000/- to the complainant. On appeal, the lower appellate court modified the sentence to simple imprisonment for 15 days and to pay a fine of Rs. 13,900/-. The transaction is of the year 1997. Further this is in respect of a kuri transaction. Therefore I feel that a sentence of imprisonment till the rising of court and a fine of Rs. 15,000/- would meet the ends of justice. In the result, 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. 15,000/-, in default, to undergo simple imprisonment for one month. The fine amount, if any, deposited by the revision petitioner before the trial court shall be adjusted towards the fine imposed. The entire fine amount, if realised, shall be paid to PW1 as compensation as provided under Section 357(1) Cr.P.C. Two Crl.R.P.No.739/2002 Page numbers month's time is granted for payment of fine. Revision petitioner shall surrender before the trial court on or before 08-01-2010 to receive the sentence. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. 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