IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 18TH DECEMBER 2009 / 27TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 1774 of 2002() ------------------------------ CRA.240/2000 of ADDL.SESSIONS COURT, (ADHOC-I), ERNAKULAM CC.101/1997 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- K.UDAYAKUMAR, S/O. KRISHNAN, C.C.12/654, PARAMARA JUNCTION, KOCHI-2 BY ADV. SRI.PHILIP T.VARGHESE SRI.N.SASI RESPONDENT(S): RESPONDENTS/COMPLAINANT -------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2. LAKSHMIKANTH.R.PAI, C.C.NO.9/1332, R.C.PAI ROAD, KOCHI-2 R1 BY PUBLIC PROSECUTOR SRI K.J. MOHAMED ANZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P.1774 of 2002 ------------------------------------------------------ Dated: DECEMBER 18, 2009 ORDER The challenge in this revision is to the judgment of Judicial First Class Magistrate-II, Kochi in CC 101/1997 dated August 9, 1999 convicting the accused under sec.138 of the Negotiable Instruments Act and sentencing him to pay a fine of Rs.63,000/-, in default to undergo simple imprisonment for seven months, which is confirmed in appeal by the Sessions Court, Adhoc-I, Ernakulam in Crl.A.240/2000 by judgment dated September 23, 2002. Out of the fine amount, if realised, Rs.60,000/- was ordered to be paid to the complainant as compensation. The accused has now come up in revision challenging his conviction and sentence. 2. The case of the revision 2nd respondent/complainant as testified by him as PW.1 before the trial court and as detailed in the complaint was that to discharge the liability towards the complainant, the accused issued the cheque Ext.P1 dated October 18, 1996 for Rs.60,000/- drawn on the Kochi-2 Branch of the Federal bank which, when presented for collection, was returned dishonoured for want of sufficiency of funds in the account of the revision petitioner in the bank and that in spite of the notice Ext.P4 dated November 13, 1996, the accused did not repay the amount, which is an offence punishable Crl.R.P.1774/02 2 under sec.138 of the Negotiable Instruments Act. 3. On receipt of the complaint the learned magistrate recorded the sworn statement of the complainant/PW.1 and took cognizance of the offence. The accused on appearance before the trial court pleaded not guilty to the charge under sec.138 of the Negotiable Instruments Act. PWs.1 to 3 were examined and Exts.P1 to P6 were marked on the side of the complainant. When questioned under sec.313 Cr.P.C. by the trial court, the accused denied the entire transaction. No defence evidence was adduced. 4. The trial court on an appreciation of evidence found the revision petitioner guilty of the offence punishable under sec.138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid, which is confirmed in appeal. The accused has now come up in revision challenging his conviction and sentence. 5. Heard the counsel for the revision petitioner and the revision 2nd respondent/complainant. 6. The following points arise for consideration:- I. Whether the conviction of the revision petitioner under sec.138 of the Negotiable Instruments Act can be sustained? II. Whether the sentence imposed is excessive or unduly harsh? Crl.R.P.1774/02 3 Point No.I 7. The complainant as PW.1 testified in terms of the complaint before the trial court. Nothing was brought out during his cross- examination to discredit his evidence. Further his evidence is supported by Exts.P1 to P6 and Pws.2 and 3, Managers of the Bank. 8. The case of the revision petitioner/accused when questioned under sec.313 Cr.P.C. by the trial court was that he issued Ext.P1 cheque to one Advocate Surendran and misusing the same the complainant has created Ext.P1. No evidence was adduced by the accused to prove the same. Further, the accused has admitted the issuance of the cheque Ext.P1. Therefore the presumption under secs.118 and 139 of the Negotiable Instruments Act is available to the complainant. No evidence was adduced by the accused to rebut the above presumption. 9. For all these reasons I find that the trial court as well as the lower appellate court is perfectly justified in accepting the evidence of PWs.1 to 3 and coming to the conclusion that the accused has committed an offence punishable under sec.138 of the Negotiable Instruments Act. The conviction of the accused is therefore confirmed. Point No.II 10. As regards the sentence, the trial court imposed a sentence of of fine of Rs.63,000/-, in default to undergo simple imprisonment Crl.R.P.1774/02 4 for seven months, which is confirmed in appeal. Out of the fine amount, if realised, Rs.60,000/- was ordered to be given to PW.1/complainant as compensation. I find no reason to reduce the sentence. In the result, confirming the conviction and sentence of the revision petitioner, the revision petition is dismissed. Two months time is granted for payment of fine. His bail bonds are cancelled. P.Q. BARKATH ALI, JUDGE CRL.M.P.9466 of 2002 Dismissed. 18.12.2009 P.Q. BARKATH ALI, JUDGE mt/-