IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 10TH FEBRUARY 2009 / 21ST MAGHA 1930 Crl.Rev.Pet.No. 502 of 2001() ----------------------------- CRA.405/1992 of I ADDL.SESSIONS COURT, ERNAKULAM CC.176/1990 of CHIEF JUDL.MAGISTRATE, ERNAKULAM .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED --------------------- KABEER KHADAR MUHAMMAD, S/O MOIDHEEN KUNJU, RESIDING AT CI STAR GARDENS APARTMENT, VRINDAVAN COLONY, ELAMKULAM BY ADV. SRI.P.M.JOSHI RESPONDENT(S)/COMPLAINANT --------------- 1. M/SVIJAYA BANK, REP. BY ITS BRANCH MANAGER, SOMASEKHARAN NAIR, M.G.ROAD, ERNAKULAM 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.PUSHPALATHA SRI.O.RAMACHANDRAN NAMBIAR SMT.N.SUDHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.Rev.Pet.No. 502 of 2001 ORDER ON CRL.M.P.2351/2001 DISMISSED 10.2.2009 SD/- V.GIRI, JUDGE (TRUE COPY) P.A. TO JUDGE V.GIRI, J ------------------- Crl.R.P.502/2001 -------------------- Dated this the 10th day of February, 2009 ORDER The accused in C.C.No.176/90 on the files of the Chief Judicial Magistrate Court, Ernakulam, who was prosecuted for an offence punishable under Section 138 of the Negotiable Instruments Act, is the petitioner in this Revision petition. The accused had a credit card facility in the Vijaya Bank, M.G.Road, Ernakulam, and he was running a proprietary concern under the name ‘Lords’. As per the credit card scheme, the accused purchased materials and obtained service from establishments. Thus, by 19.10.1989, Rs.3,64,453.87 was due to the complainant. When the amount was demanded, the accused issued Ext.P2 cheque dated 28.2.1990 for an amount of Rs.20,000/- towards part payment. Cheque was dishonoured, on presentation. A notice demanding re-payment was issued. There was no re- payment and hence the complaint. Crl.R.P.502/2001 2 2. That the cheque, on presentation, was dishonoured due to insufficiency of funds in the account, was proved by the testimony of PWs1 and 2 as also the documentary evidence adduced on behalf of the complainant by Exts.P1 to P6. 3. Curious contention was taken up on behalf of the accused that the cheque was not presented for collection before the Bank and therefore, the offence, has not been made out. This was rejected by the trial Court, accepting the case of the complainant that the account in question maintained by the accused under the name of ‘Lords’ was a current account and the endorsement normally found on the reverse of the cheque when it is negotiated through an SB account, would not be found in the cheque in question. But it was clearly proved that the cheque was presented for collection and that the account did not have funds. Therefore, the cheque could not be negotiated. No reply was also given by the accused to the statutory Crl.R.P.502/2001 3 notice sent to him. The ingredients for completion of the offence under Section 138 of the Act were therefore, completely proved by the complainant. 4. It has come out that there were three other cases, for which the accused was prosecuted for an offence under Section 138 of the Act and the conviction and sentence in all those cases have been affirmed by the appellate Court and by this Court. The judgment in Crl.R.P.503/2001 dated 9.12.2008 was made available before me for perusal by the counsel for the complainant. He further submits that the accused seems to be absconding. This seems to be plausible because a reading of the order dated 9.12.2008 in Cr.R.P.No.503/2001 shows that the counsel was constrained to note my instructions when the case was called. 5. I have gone through the evidence adduced in the case and the records as well. Ingredients for the offence Crl.R.P.502/2001 4 punishable under Section 138 of the Act have been completely proved. In these circumstances, the conviction and sentence of the accused does not suffer from any infirmity. I do not find any grounds to interfere with the conviction. 6. But as regards the sentence, I prefer to follow the modification effected by this Court in Crl.R.P.503/2001 whereby the substantive sentence of imprisonment for a period of three months was modified as till the rising of the Court with a further direction to pay a compensation to the tune of Rs.25,000/-. I find that the cheque amount involved in the said case is also Rs.25,000/-. 7. Accordingly, Criminal Revision Petition is allowed in part. The conviction of the accused under Section 138 of the Negotiable Instruments Act is affirmed. Substantive sentence awarded to the petitioner is modified to simple imprisonment till the rising of the Court. Accused is directed to deposit before the trial Crl.R.P.502/2001 5 Court an amount of Rs.25,000/- as compensation within two months from today. Accused shall appear before the trial Court on 16.3.2009 for suffering the sentence of imprisonment. V.GIRI, Judge mrcs