IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 21ST JULY 2010 / 30TH ASHADHA 1932 Crl.Rev.Pet.No. 1170 of 2004(A) ------------------------------- ( S.T CASE NO.734/1994 OF CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM CRL.APPEAL NO.415/1998 OF I ADDL. SESSIONS COURT, THIRUVANANTHAPURAM) REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- M.CHANDRASEKHARAN NAIR, S/O. MADHAVAN PILLAI, NEDUTHARAVILA VEEDU, KALADI, KARAMANA P.O., THIRUVANANTHAPURAM (NOW WORKING AS PEON IN CANARA BANK, KOTTAYAM BRANCH). BY ADV. SRI.G.HARIHARAN RESPONDENT(S): RESPONDENTS/COMPLAINANT: --------------------------------------- 1. SMT.S.VALSALA KUMARI, D/O. SETHUKUTTY AMMA, VARIKKAMANVILA VEEDU, NEAR KALLIYOOR PANCHAYATH OFFICE, KALLIYOOR P.O., THIRUVANANTHAPURAM. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.NAGARAJ NARAYANAN FOR R1 PUBLIC PROSECUTOR SRI.MUHAMMED PUZHAKKARA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.1170 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of July, 2010 ORDER Revision petitioner is the accused in S.T.Case No.734/1994 of Chief Judicial Magistrate Court, Thiruvananthapuram and appellant in Crl.Appeal No.415/1998 of First Addl. Sessions Court, Thiruvananthapuram. He was convicted under Section 138 of Negotiable Instruments Act and was sentenced to undergo rigorous imprisonment for two months and to pay a fine of Rs.35,000/- in default to undergo simple imprisonment for two weeks by the trial court. Out of the fine amount Rs. 30,000/- was ordered to be paid as compensation to the complainant. On appeal, the lower appellate court confirmed his conviction, but modified the sentence to imprisonment till the rising of court. The sentence of fine imposed by the trial court was confirmed. The accused has now come up in revision challenging his conviction and sentence. 2. The case of the first respondent/complainant as testified by Cr.R.P.No.1170/04 2 him as PW1 before the trial court and as detailed in the complaint was that complainant was the wife of the accused, that they divorced on April 25, 1994 and that at that time accused issued the cheque Ext.P1 dated May 27, 1994 for Rs. 25,000/- drawn on the District Co-operative Bank of Thiruvananthapuram which when presented for collection was returned dishounoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of notice Ext.P4 dated August 23, 1994, 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. PWs 1 and 2 were examined and Exts.P1 to P7 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the accused submitted that Ext.P1 cheque was forcibly taken from him by the complainant and her brother and that no amount Cr.R.P.No.1170/04 3 is due from him to the complainant. The accused got himself examined as DW1 before the trial court. 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 confirmed the conviction, but modified the sentence as mentioned above. 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 ? Cr.R.P.No.1170/04 4 Point No.1 7. PW 1, the complainant and PW2, the Bank Manager testified in terms of the complaint. Nothing was brought out during their cross examination to discredit their evidence. Further their evidence is supported by Exts.P1 to P7. 8. The case of the revision petitioner/accused is that Ext.P1 cheque was forcibly taken from him by the complainant and her brother and that no amount is due to the complainant from him. No evidence was adduced by the accused before the trial court except examining himself to prove his case. On the other hand, the case of the complainant was proved by Ext.P1 to P7. Therefore both the courts below are justified in rejecting the above case of the accused. 9. For all these reasons, I hold that the trial court as well as the appellate court is perfectly justified in accepting the evidence of Pws 1 and 2 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. Cr.R.P.No.1170/04 5 10. As regards the sentence, the Trial court imposed a sentence of rigorous imprisonment for two months and to pay a fine of Rs.35,000/- in default to undergo simple imprisonment for two weeks. Out of the fine amount Rs. 30,000/- was ordered to be paid as compensation to the complainant. On appeal, the lower appellate court modified the sentence to imprisonment till the rising of court. The sentence of fine imposed by the trial court was confirmed. I find no special reason to reduce the sentence. Therefore, confirming the conviction and sentence of the revision petitioner by the trial court which is confirmed in appeal, the revision petition has to be dismissed. In the result, revision petition is dismissed. Two months time is granted for payment of fine. Revision petitioner shall surrender before the trial court on or before 30/07/2010 to receive the sentence. P.Q.BARKATH ALI JUDGE sv.