IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 25TH JUNE 2010 / 4TH ASHADHA 1932 Crl.Rev.Pet.No. 2212 of 2004(B) ------------------------------- CRA.176/2003 of ADDL. SESSIONS COURT (ADHOC), THRISSUR CC.875/1999 of JUDL. MAGISTRTE OF FIRST CLASS COURT-III, THRISSUR .................... REVN. PETITIONER(S): APPELLANT - ACCUSED --------------------- P.V.JOHNSON, PARAKKADATH VEEDU, P.O. KORATTY, CHARANGARA EAST, THRISSUR DISTRICT. BY ADV. SRI.K.A.SATHEESA BABU RESPONDENT(S): RESPONDENTS/STATE AND COMPLAINANT --------------- 1. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. RESMI HIRE PURCHASE COMPANY, OLLUR, REP. BY MANAGER, MOHAN U.B., S/O.BALAN, ORALLATH HOUSE, KALLUR P.O., THRISSUR DISTRICT. SRI.DILIP J. AKKARA FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P. 2212 of 2004 ------------------------------------------------------ Dated: JUNE 25, 2010 ORDER The challenge in this revision is to the judgment of the Judicial First Class Magistrate Court, No.III, Thrissur, in CC 875/1999 dated February 27, 2003 convicting the revision petitioner/accused under sec.138 of the Negotiable Instruments Act and sentencing him to undergo simple imprisonment for one month and to pay a fine of Rs.10,000/-. The lower appellate court IIIrd Addl. Sessions Court (Ad Hoc), Fast Track Court No.1, Thrissur, confirmed the conviction by judgment in Crl.A. 176/2003 dated May 7, 2004, but modified the sentence to imprisonment till the rising of court and to pay a compensation of Rs.12,000/-, in default to undergo simple imprisonment for 15 days. 2. The case of the revision 2nd respondent/complainant as testified by him as PW.1 and as stated in the complaint before the trial court in brief is this: The revision petitioner/accused availed a loan of Rs.48,400/- pledging his autorickshaw bearing registration No.KL7-T 9153 from the complainant. The agreement was to repay the amount in 42 equal instalments of Rs.1635/- per month. The accused defaulted payment of the instalments. For the balance amount due, CRL. R.P. 2212 of 2004 2 revision petitioner issued a cheque Ext.P2 dated March 15, 1999 for Rs.9810/- which, when presented for collection, was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of the notice Ext.P5 dated March 26, 1999, the accused did not repay the amount. Therefore the revision 2nd respondent/complainant filed the complaint before the trial court. 3. The learned Magistrate, on receipt of the complaint, recorded the sworn statement of the complainant and took cognizance of the offence. The complainant was examined as PW.1 and the Bank Manager as PW.2 before the trial court and Exts.P1 to P12 were marked on the side of the complainant. When questioned under sec.313 Cr.P.C. by the trial court, the accused denied the transaction. DWs.1 and 2 were examined and Ext.D1 was marked on his side. 4. On an appreciation of evidence the learned Magistrate found the accused guilty of the offence punishable under sec.138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid. On appeal the learned Sessions Judge confirmed the conviction, but modified the sentence as mentioned above. The accused has now come up in revision challenging his conviction and CRL. R.P. 2212 of 2004 3 sentence. 5. Heard the counsel for the revision petitioner/accused and the revision 2nd respondent/complainant. 6. The following points arise for consideration:- I. Whether the conviction of the revision petitioner by the trial court under sec.138 of the Negotiable Instruments Act, which is confirmed in appeal, can be sustained? II. Whether the sentence imposed is excessive or unduly harsh? 7. On the side of the complainant, PW.1 was examined and Exts.P1 to P12 were marked before the trial court. PW.1 testified in terms of the complaint. Nothing was brought out in cross-examination to discredit her evidence. Further, her evidence is supported by Exts.P1 to P12. 8. The case of the revision petitioner is that the cheque Ext.P1 was given as security in connection with the transaction regarding the autorickshaw. To prove his case, the accused examined DWs.1 and 2 and produced Ext.D1. But the learned Magistrate as well as the learned Sessions Judge rejected the evidence of DWs.1 and 2 and accepted the evidence of PW.1. The learned Magistrate has chosen to believe the evidence of PW.1/the complainant and PW.2, the Bank Manager, and held that the accused has committed an offence CRL. R.P. 2212 of 2004 4 punishable under sec.138 of the Negotiable Instruments Act. I have gone through the judgment of the trial court as well as that of the lower appellate court and the depositions of the witnesses. I find no reason to come to a different conclusion. 9. For all these reasons I confirm the finding of the learned Magistrate that the accused has committed an offence punishable under sec.138 of the Negotiable Instruments Act which is confirmed in appeal by the lower appellate court. 10. As regards the sentence, the trial court imposed a sentence of simple imprisonment for one month and to pay a compensation of Rs.10,000/- which is modified by the lower appellate court as imprisonment till the rising of court and a compensation of Rs.12,000/-. The cheque amount is only Rs.9810/-. Therefore I feel that the substantive sentence of imprisonment till the rising of court and a compensation of Rs.10,000/- as ordered by the trial court would meet the ends of justice. In the result, the revision petition is allowed in part. The sentence of the revision petitioner is modified to the effect that he shall undergo imprisonment till the rising of court and pay a compensation of Rs.10,000/-, in default to undergo simple imprisonment for 15 days. CRL. R.P. 2212 of 2004 5 The accused/revision petitioner shall surrender before the trial court on or before 26.7.2010 to undergo the sentence. Three months time is granted for payment of compensation. The bail bonds of the accused are cancelled. P.Q. BARKATH ALI, JUDGE mt/-