IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 20TH JANUARY 2011 / 30TH POUSHA 1932 Crl.Rev.Pet.No. 608 of 2005(A) -------------------------------------------- CRA.210/2003 of ADDL.SESSIONS COURT, THODUPUZHA CC.637/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THODUPUZHA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: -------------------------------------------------------------------- SOMY JACOB, VARIKATTU HOUSE, CHILAVU P.O, KALAYANTHANI, THODUPUZHA. BY ADV. SRI.UNNIKRISHNAN.V.ALAPATT RESPONDENT(S): COMPLAINANT AND STATE: --------------------------------------------------------------------- 1. JOSHY VARGHESE, THANNIDAMMAKKAL VEEDU, PUTHUPPARIYARAM P.O. THODUPUZHA. 2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.K.K.CHANDRAN PILLAI SRI.SUDHEESH.A. R2 BY PUBLIC PROSECUTOR SRI. MUHAMMED PUZHAKKARA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts P.Q.BARKATH ALI, J. ----------------------------------------- Crl..R.P NO.608 OF 2005 ---------------------------------------- Dated this the 20th day of January, 2011 O R D E R Revision petitioner is the accused in C.C.No.637/2000 on the file of Judicial First Class Magistrate Court-II, Thodupuzha and appellant in Crl.Appeal No.210/2003 on the file of III Addl. Sessions Court, Thodupuzha. He was convicted under Section 138 of Negotiable Instruments Act and sentenced to undergo simple imprisonment for one year and to pay a compensation of Rs.2,00,000/-, and in default to undergo simple imprisonment for three months by the learned Magistrate by judgment dated July 10, 2003. On appeal by the accused the learned Sessions Judge confirmed his conviction, but modified the sentence to simple imprisonment for three months and to pay compensation of Rs.2,00,000/- to the complainant, in default to undergo simple imprisonment for three months. 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 stated in the complaint in brief is this: Accused borrowed Rs.2,00,000/-from the complainant and to Crl..R.P NO.608 OF 2005 2 discharge that liability he issued Ext.P1 cheque for the said amount on June 1, 2000 which when presented for encashment 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 May 27, 2003, the accused did not repay the amount which is an offence punishable under Section 138 of Negotiable Instruments Act. Therefore the complainant filed the complaint before the trial Court. 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. Complainant was examined as PW1 and 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 learned Magistrate 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 by the Crl..R.P NO.608 OF 2005 3 accused learned Sessions Judge confirmed his 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/accused and the counsel for the revision first respondent/complainant. 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 a convincing manner before the trial court regarding the transaction. No serious discrepancies were pointed out in his evidence to discredit his evidence. Further his evidence is supported by Exts.P1 to P6. 8. The specific case of the accused when questioned under Section 313 Cr.P.C. by the learned Magistrate was that he gave a blank signed cheque to the brother of the complainant which was misused by the complainant and created as Ext.P1. But no evidence was adduced by the accused to prove his case. Further as the accused admitted the issuance of Ext.P1 cheque Crl..R.P NO.608 OF 2005 4 the presumptions under Sections 118 and 139 of Negotiable Instruments Act is available for the complainant. No evidence was adduced by the accused to rebut the above presumption effectively. 9. For all these reasons, I am of the view that the trial court as well as the lower appellate court are 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. Therefore I confirm the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act. Point No.2 10. As regards the sentence, the Trial court imposed a sentence of simple imprisonment for one year and to pay a compensation of Rs.2,00,000/- to the complainant, and in default to undergo simple imprisonment for a further period of three months' which is confirmed in appeal. The lower appellate court modified the sentence to simple imprisonment for three months' and to pay a compensation of Rs.2,00,000/- to the complainant and in default to undergo simple imprisonment for a period of three months'. As the transaction is of the year 2000 a lenient Crl..R.P NO.608 OF 2005 5 view is taken and I feel that a sentence of imprisonment till the rising of court and a direction to pay a compensation of Rs.2,00,000/-with default sentence would meet the ends of justice. In the result, the revision petition is allowed in part. The conviction of the revision petitioner under Section 138 of Negotiable Instruments Act is confirmed. He is sentenced to undergo imprisonment till the rising of court and to pay a compensation of Rs.2,00,000/- in default to undergo simple imprisonment for 3 months. Two months time is granted for payment of compensation. He shall surrender before the trial court on or before February 28, 2011 to suffer the sentence. His bail bonds are cancelled. P.Q.BARKATH ALI, JUDGE mns