IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 22ND DECEMBER 2009 / 1ST POUSHA 1931 Crl.Rev.Pet.No. 2873 of 2003() ------------------------------ CRA.28/2002 of SESSIONS COURT, MANJERI ST.2347/1999 of JUDICIAL FIRST CLASS MAGISTRATE, PONNAI .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- KUNDOORATH VALAPPIL VELAYUDHAN, AGED 37 YEARS S/O. AYYAPPAN, MANGATTUR DESOM, KALADI AMSOM, PONNANI TALUK, MALAPPURAM DISTRICT BY ADV. SRI.C.KHALID SRI.N.GOPINATHA PANICKER SRI.P.VISWAMBARAN RESPONDENT(S): RESPONDENTS/COMPLAINANT -------------------------------------- 1. MOIDEEN S/O. ATTARITHODI KUNHIMUHAMMED, AGED 38 YEARS, EDAPPAL AMSOM, PERUMBARAMBA DESOM, MALAPPURAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ADV. SRI.K.M.SATHYANATHA MENON FOR R1 PUBLIC PROSECUTOR SRI.K.J.MOHAMMED ANZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.2873 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of December, 2009 ORDER Revision petitioner is the accused in S.T.No.2347/1997 of Judicial First Class Magistrate Court, Ponnani and appellant in Crl.Appeal No.28/2002 of Sessions Court, Manjeri. He was convicted under Section 138 of Negotiable Instruments Act and was sentenced to undergo rigorous imprisonment for two months and to pay a compensation of Rs. 50,000/-. On appeal, his conviction was confirmed, but sentence was modified to the effect that he was sentenced to undergo simple imprisonment for two months. The direction for payment of compensation was confirmed. Th 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 towards Rs. 50,000/- due to the complainant, the accused issued the cheque Ext.P2 dated July 18, 1997 drawn on the Edapal branch of Canara Bank which when presented for collection was returned Crl.R.P.No.2873/03 Page numbers dishounoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of notice Ext.P4 dated July 28, 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 P7 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the accused denied the entire transaction. He himself examined as DW1 on his side. 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 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. Crl.R.P.No.2873/03 Page numbers 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 ? 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 P7. 8. The case of the accused as testified by him as DW1 before the trial court was that he has undertaken the construction of the house of the sister of the complainant, that as he has no sufficient funds, he stopped the work, that at that time, the revision petitioner owed Crl.R.P.No.2873/03 Page numbers Rs. 10,000/- to the sister of the complainant and as security the accused gave a signed blank cheque to her and that the said cheque was misused by the complainant and created Ext.P2. But except the interested version of DW1, there was no other evidence to prove the case of the accused. Further he did not send any reply to the notice received. 9. 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 DW 1 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 10. Regarding the sentence, the trial court imposed a sentence of rigorous imprisonment for two months and to pay a compensation of Rs. 50,000/-. On appeal, the substantive sentence was reduced to simple imprisonment for two months. The direction for payment of compensation was confirmed. The transaction is of the year 1997. Crl.R.P.No.2873/03 Page numbers Therefore, I feel that a sentence of imprisonment till the rising of court and a compensation of Rs. 60,000/- 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. 60,000/- as provided under Section 357 (3) Cr.P.C, in default to undergo simple imprisonment for three months. The amount already deposited by the revision petitioner before the trial court shall be adjusted towards the compensation awarded. 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.2873/03 Page numbers Crl.R.P.No.2873/03 Page numbers Crl.R.P.No.2873/03 Page numbers