IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 30TH NOVEMBER 2009 / 9TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 1143 of 2001() ------------------------------ CRA.128/2001 OF THE IVTH ADDL.SESSIONS COURT, ERNAKULAM CC.197/1999 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... REVN. PETITIONER(S): RESPONDENT/COMPLAINANT:- --------------------- T.D.AUGUSTINE, MANAGER, EBANAZOR FINANCE, THOPPUMPADY. BY ADV. SRI.T.O.XAVIER RESPONDENT(S): APPELLANT/ACCUSED AND STATE:- --------------- 1) M.M.MATHEW, UCO BANK, FORT COHIN, KOCHI-1. 2) STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT. REKHA C. NAIR FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 1143 of 2001 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 30th November, 2009 O R D E R Revision petitioner is the complainant in C.C.No.197of 1999 of the Judicial Magistrate of the First Class-II, Kochi and 1st respondent in Crl.A.No.128 of 2001 of the Vth Addl. Sessions Court, Ernakulam. 2. The accused in the above case was convicted under section 138 of the Negotiable Instruments Act and sentenced to undergo rigorous imprisonment for four months and to pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for two months. Out of the fine amount, Rs.4,000/- was ordered to be paid to the complainant as compensation under section 357(1) Cr.P.C. On appeal by the accused, the lower appellate court allowed the appeal and set aside the judgment of the trial court and acquitted the accused. The complainant has come up in revision challenging the judgment of the lower appellate court acquitting the accused. 3. The case of the revision petitioner/complainant, as testified by him as PW1 before the trial court and as detailed in the complaint, was that Crl.R.P. 1143/01 2 the accused issued cheque Ext.P2 dated August 30, 1998 for Rs.50,000/-, drawn on the Fort Kochi Branch of UCO Bank, to discharge his liability towards the complainant, 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 notice Ext.P6 dated November 13, 1990, the accused did not re-pay the amount, which is an offence punishable under section 138 of the Negotiable Instruments Act. 4. On receipt of the complaint, the learned Magistrate recorded the sworn statement of the complainant and took cognizance of the offence. The accused on appearance before the trial court, pleaded not guilty to the charge under section 138 of the Negotiable Instruments Act. PW1 was examined and Exts.P1 to P 9(b) were marked on the side of the complainant. When the accused was questioned under section 313 Cr.P.C. by the learned Magistrate, he denied the entire transaction. No defence evidence was adduced. 5. The trial court, on an appreciation of the evidence, found the accused guilty of the offence punishable under section 138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him as afore said. On appeal by the accused, the lower appellate court set aside the judgment of the trial court and acquitted the accused. The complainant has Crl.R.P. 1143/01 3 come up in revision challenging the judgment of the lower appellate court. 6. Heard the learned counsel for the revision petitioner and the learned counsel for the 1st respondent. 7. The following points arise for consideration :- 1) Whether the judgment of the lower appellate court acquitting the accused/1st respondent can be sustained? 2) If found guilty, what is the proper punishment to be imposed on the accused ? 8. PW1 the complainant was examined and Exts.P1 to P9(b) were marked on the side of the complainant before the trial court. I have gone through the evidence of PW1. No discrepancy was pointed out to discredit his evidence. Further, his evidence is supported by Exts.P1 to P9(a). 9. The case of the accused was that the complainant presented the cheque twice, that the first presentation was on September 23, 1998 and that therefore the complaint is barred by limitation. The lower appellate court accepting the above contention, set aside the judgment of the trial court and acquitted the accused. It has been held by the Apex Court in Sadanandan Bhadran V. Madhavan Sunil Kumar (1998(2) KLT 765) that a cheque can be presented any number of times during its validity because cause of action arises only when notice is given. In the present case, though initially cheque was presented on 23-9-1998, thereafter it was again Crl.R.P. 1143/01 4 presented for collection on 5-11-1998 and only thereafter Ext.P4 notice was issued and it was received by the accused on 17-1-1998 as seen from Ext.P7 acknowledgment card. That being so, the complaint is within time and cannot be said to be barred by limitation. 10. I have chosen to believe the evidence of PW1 and find that the 1st respondent/accused has issued cheque Ext.P2 to discharge his liability towards PW1 which when presented for collection was returned for want of sufficiency of funds in the account of the accused and that in spite of notice Ext.P4 the accused did not repay the amount, which is an offence punishable under section 138 of the Negotiable Instruments Act. Therefore, I set aside the judgment of the lower appellate court and confirm the conviction of the accused under section 138 of the Negotiable Instruments Act rendered by the trial court. 11. As regards the sentence, the trial court has imposed a sentence of rigorous imprisonment for four months and to pay a fine of Rs.5,000/- The transaction is of the year 1999. Taking into consideration that aspect, I feel that sentence imprisonment till the rising of court and fine of Rs.55,000/-, in default to undergo simple imprisonment for three months would meet the ends of justice 12. In the result, the revision petition is allowed. The judgment of Crl.R.P. 1143/01 5 the lower appellate court is set aside. Conviction of the accused under section 138 of the Negotiable Instruments Act rendered by the trial court is confirmed. The sentence imposed on the revision petitioner by the trial court is modified to the effect that the revision petitioner is sentenced to undergo imprisonment till the rising of the court and to pay fine of 55,000/-, in default to undergo simple imprisonment for three months. Out of the fine amount, if realized, Rs.50,000/- shall be paid to the revision petitioner/complainant as compensation as provided under section 357(1) of the Cr.P.C. Two months’ time is granted to the 1st respondent/accused for payment of fine. P.Q.BARKATH ALI, JUDGE. mn. Crl.R.P. 1143/01 6 P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 1143 of 2001 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= O R D E R 30-11-2009