IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 9TH JULY 2010 / 18TH ASHADHA 1932 Crl.Rev.Pet.No. 616 of 2002() ----------------------------- CC.482/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT, VADAKKANCHERY CRA.146/2000 of ADDL. SESSIONS COURT (ADHOC), THRISSUR .................... REVN. PETITIONER(S): REVN. PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------- C.A. JOSE, S/O. CHITTILAPPILLY ANTONY, CHITTILAPPILLY HOUSE, P.O. KUNDUKADU, THRISSUR DISTRICT. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT(S): RESPONDENT/COMPLAINANT & STATE: ---------------------------------------------- 1. JANAKY AMMA, D/O. PARAMGODATHU PARUKUTTY AMMA, PARANGODATHU HOUSE, THEKKUMKARA VILLAGE, THALAPPILLY TALUK. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.S.RAJEEV FOR R1 SRI.N.K.UNNIKRISHNAN FOR R1 PUBLIC PROSECUTOR SRI.P.K.MUHAMMED PUZHAKKARA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 616 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of July, 2010 ORDER Revision petitioner is the accused in C.C.No.482/1998 of Judicial First Class Magistrate Court, Wadakkancherry and appellant in Crl.Appeal No.146/2000 of III Addl.Sessions (Adhoc) Fast Tract Court No.1, Thrissur. He was convicted under Section 138 of Negotiable Instruments Act and was sentenced to undergo simple imprisonment for nine months by the trial court. He was also directed to pay a compensation of Rs. 45,000/- to the complainant. On appeal, the lower appellate court confirmed his conviction, but modified his sentence to simple imprisonment for one month. The direction to pay compensation was retained. The 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 accused borrowed Rs. 60,000/- from her on October 1, 1997 and to discharge that liability, accused issued the cheque Ext.P1 dated Cr.R.P.No.616/2002 2 December 28, 1997 for Rs. 40,000/- and another cheque on December 2, 1996 for Rs. 10,000/- and that the cheque Ext.P1 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 notice Ext.P3 dated April 6, 1998, 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 PW1 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. PW1 was examined and Exts.P1 to P6 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., 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 Section 138 of Negotiable Instruments Act , convicted him thereunder and sentenced him as aforesaid. On appeal, the lower appellate court Cr.R.P.No.616/2002 3 confirmed the conviction, but modified the sentence as aforesaid. The accused has now come up in revision challenging his conviction and sentence. 5. Heard the counsel for the revision petitioner and the counsel for the first revision 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. 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 P6. 8. The case of the revision petitioner when questioned under Cr.R.P.No.616/2002 4 Section 313 Cr.P.C. was that he has received Rs. 25,000/- from the husband of the complainant and he has issued the cheque as security for the same. But no evidence was adduced on the side of the accused to prove the same. Therefore, in my view, both the courts below are justified in rejecting the above case of the accused. Further, as the execution of the cheque Ext.P1 was admitted by the accused, presumption as envisaged under Section 118 and 139 of Negotiable Instruments Act is available to him. No evidence was adduced by the accused to rebut the above presumption. 10. For all these reasons, I hold that the trial court as well as the appellate court is perfectly justified in accepting the evidence of PW1 and finding that the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act and convicting him thereunder. Therefore I confirm the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act. 11. As regards the sentence, the Trial court imposed a sentence of simple imprisonment for 9 months which was reduced to one month by the lower appellate court. The revision petitioner was directed to Cr.R.P.No.616/2002 5 pay a compensation of Rs. 45,000/- to the complainant. The transaction is of the year 1997. Taking into consideration that aspect, I feel that a sentence of imprisonment till the rising of court and a compensation of Rs.45,000/- as ordered by the trial court would meet the ends of justice. In the result, revision petition is allowed in part. The 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 to pay a compensation of Rs. 45,000/- to the complainant as provided under Section 357(3) Cr.P.C., in default to undergo simple imprisonment for one month. Two month's time is granted for payment of compensation. The amount, if any, deposited by the accused before the trial court shall be adjusted towards the compensation. The complainant will be entitled to withdraw that amount. The revision petitioner shall surrender before the trial court on or before 20/08/2010 to receive the sentence. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Cr.R.P.No.616/2002 6