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. 728 of 2004(A) ------------------------------ CRA.274/2002 of ADDL.SESSIONS COURT, KOTTAYAM ST.1710/1997 of JUDL.MAGISTRATE OF FIRST CLASS - I, ETTUMANUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: -------------------------------------------------- P.T. CHACKO (REAL NAME IS P.J. CHACKO WRONGLY DESCRIED AS P.T. CHACKO IN THE COMPLAINT), PAYYANADAM HOUSE, VILLCONNI P.O., ARPOOKKARA, KOTTAYAM. BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENT(S): RESPONDENTS/COMPLAINANT & NOT PARTY: --------------------------------------------------- 1. M.S. NARAYANAN, RETNALAYAM VEEDU ATHIRAMPUZHA VILLAGE, KANAKKARIA P.O., ETTUMANOOR. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.C.S.SUNIL 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. 728 of 2004-A ------------------------------------------------------ Dated: JUNE 25, 2010 ORDER This revision by the accused is directed against the judgment of the Judicial First Class Magistrate Court, Ettumanoor, in ST 1710/1997 dated June 28, 2002 convicting the revision petitioner/accused under sec.138 of the Negotiable Instruments Act and imposing a fine of Rs.5000/-, in default to undergo simple imprisonment for three months, which is confirmed in appeal by the Additional Sessions Court, Kottayam, in Crl.A.274/2002 by judgment dated December 20, 2003. 2. The case of the revision 1st respondent/complainant as testified by him as PW.1 before the trial court and as stated in the complaint is that the accused borrowed Rs.5000/- from him as a loan and to discharge that liability, the accused issued the cheque Ext.P1 dated March 4, 1997 for the said amount drawn on the State Bank of Travancore, S.B.College Branch, Changanacherry, 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.P4 dated May 28, 1997, the accused did not repay the amount, which is an offence punishable under sec.138 of CRL. R.P. 728 of 2004-A 2 the Negotiable Instruments Act. 3. The learned Magistrate, on receipt of the complaint, 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. 4. The complainant was examined as PW.1 before the trial court and Exts.P1 to P7 were marked on his side. When questioned under sec.313 Cr.P.C. by the trial court, the accused denied the transaction. The accused examined himself as DW.1 and produced Exts.D1 to D3 before the trial court. 5. 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, which is confirmed in appeal. Out of the fine amount, Rs.4500/- was directed to be paid as compensation to the complainant. The accused has now come up in revision challenging his conviction and sentence. 6. Heard the counsel for the revision petitioner/accused and the counsel for the revision 1st respondent/complainant. 7. The complainant as PW.1 testified in terms of the CRL. R.P. 728 of 2004-A 3 complaint in a convincing manner before the trial court. No serious discrepancies or inconsistencies were brought out in his evidence. Further, his evidence is supported by Exts.P1 to P7. 8. The specific case of the accused as testified by him as DW.1 before the trial court was that the accused had some transaction with the complainant and a signed blank cheque was given to him which was misused by the complainant. Except the interested version of DW.1, no evidence was adduced by him to prove the same. That apart, execution of Ext.P1 was admitted by the accused. Therefore the presumption under secs.118 and 139 of the Negotiable Instruments Act is available to the complainant. No satisfactory evidence was adduced on the side of the accused to rebut the above presumption. For all these reasons the learned Magistrate as well as the learned Sessions Judge, in my view, are perfectly justified in finding the accused guilty of the offence punishable under sec.138 of the Negotiable Instruments Act and convicting him thereunder. 9. As regards the sentence, the trial court imposed a sentence of fine of Rs.5000/-, which is confirmed in appeal by the lower appellate court. I find no special reason to reduce the sentence. That being so, confirming the conviction and sentence of the revision CRL. R.P. 728 of 2004-A 4 petitioner, the revision petition is dismissed. But, in the circumstances of the case, I feel that two months time can be granted to the revision petitioner to pay the fine amount. In the result, confirming the conviction and sentence of the revision petitioner, the revision petition is dismissed. He shall remit the fine amount within two months from this date. His bail bonds are cancelled. P.Q. BARKATH ALI, JUDGE mt/-