IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 30TH JUNE 2011 / 9TH ASHADHA 1933 Crl.Rev.Pet.No. 1406 of 2008() ------------------------------ CRA.535/2006 of II ADDL.SESSIONS COURT, ERNAKULAM ST.1383/2003 of JUDL.MAGISTRATE OF FIRST CLASS, PERUMBAVOOR .................... REVN. PETITIONER/APPELLANT/ACCUSED: --------------------------------------- K.G.HARIDAS, S/O.K.G.GOPINATH, AGED 38 YEARS, KOCHERIKKATTIL HOUSE U.C.COLLEGE P.O., ALUVA, ERNAKULAM DISTRICT. BY ADV. SRI.V.PHILIP MATHEW RESPONDENTS/COMPLAINANT AND STATE: --------------- 1. K.D.PAUL, S/O.DEVASSY, KAVALAKKADAN VEEDU, KALADY P.O. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.DINESH MATHEW J.MURICKEN SRI.JAIBY PAUL, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. ---------------------------------------------------- Crl.R.P.No. 1406 of 2008 -------------------------------------------- Dated this the 30th day of June, 2011 ORDER Revision petitioner is the accused in S.T.Case No.1383/03 of the Judicial First Class Magistrate Court, Perumbavoor and the appellant in Criminal Appeal No.535/06 of the II Addl. Sessions Judge, Ernakulam. He was convicted under Section 138 of the Negotiable Instruments Act, and sentenced to under go simple imprisonment for three months and to pay a compensation of Rs.4,000/- to the complainant, in default to under go simple imprisonment for 45 days, by the Trial Court by its judgment dated June 16, 2006. On appeal by the accused, learned Sessions Judge confirmed his conviction and the direction to pay compensation was also not interfered with. But the default sentence imposed by the trial court was set aside. Now the accused has come up in revision challenging his conviction and sentence. 2. The case of the complainant/first respondent, as 2 Crl.R.P.No. 1406 of 2008 testified by him as PW1 before the trial Court and as detailed in the complaint in brief is this: The accused borrowed Rs.20,000/- from the complainant on February 25, 2002. Towards repayment of Rs.3,000/-, out of the afore said amount, the accused issued Exhibit P1 cheque dated June 10, 2002 for Rs.3,000/- in favour of the complainant which when presented for collection returned dishonored for want of sufficiency of funds in the account of the revision petitioner in the bank and that inspite of the notice of Exhibit P5 the accused did not repay the amount, which is an offence punishable under Section 138 of the Negotiable Instruments Act. 3. On receipt of the complaint, the trial Court 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. PW1 was examined and Exhibits P1 to P5 were marked on the side of the complainant. 4. When questioned under Section 313 of Cr.P.C the 3 Crl.R.P.No. 1406 of 2008 accused denied the transaction. No defence evidence was adduced. On an appreciation of evidence the learned Magistrate found the accused guilty of the offence punishable under Section 138 of the Negotiable Instruments Act convicted him thereunder and sentenced him to under go simple imprisonment for 3 months. Learned Sessions Judge confirmed his conviction but modified the sentence as mentioned above. Accused has now come up in revision challenging his conviction and sentence. 5. Heard learned counsel for the appellant/accused and counsel for the complainant. 6. The following points arises for consideration. 1. Whether conviction of the accused under Section 138 of the Negotiable Instruments Act can be sustained? 2. Whether the sentence imposed against the revision petitioner is excessive or unduly harsh? 7. The complainant testified as PW1 before the trial Court in a convincing manner regarding the transaction. 4 Crl.R.P.No. 1406 of 2008 He was not cross-examined by the counsel for the accused. Further his evidence is supported by Exhibit P1 to P5. The case of the accused was of totally denied. But he did not adduce any evidence. Taking into consideration all these facts and circumstances, I am of the view that the trial Court is perfectly justified in accepting the evidence of PW1 and holding that the accused is guilty of the offence punishable under Section 138 of the Negotiable Instruments Act and convicting him thereunder. The conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act is therefore confirmed. 8. As regards the sentence the trial court imposed a sentence of simple imprisonment for 3 months and to pay a compensation of Rs.4,000/-, in default to under go simple imprisonment for 45 days. The lower appellate court confirmed his conviction and sentence and also the direction to pay compensation of Rs.4,000/-. But the default sentence imposed by the trial court was set aside. 9. The transaction was of the year in 2002. Further cheque is only for Rs.3,000/-. Therefore, I feel that 5 Crl.R.P.No. 1406 of 2008 sentence of imprisonment till rising of court and the direction to pay compensation of Rs.4,000/- to the complainant with default sentence as ordered by the trial court 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 the Negotiable Instruments Act is confirmed. Sentence is modified to the effect that he is sentenced to under go simple imprisonment till the rising of Court and to pay a compensation of Rs.4000/- to the complainant, in default to under go simple imprisonment for 45 days. One month time is granted for payment of compensation. He shall surrender before the trial court on or before August 01, 2011. His bail bonds are canceled. P.Q.BARKATH ALI, JUDGE. rkc