IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 19TH APRIL 2011 / 29TH CHAITHRA 1933 Crl.Rev.Pet.No. 1132 of 2011() ------------------------------------------- CRA.NO.105/2001 OF ADDL.SESSIONS JUDGE, ADHOC II, THALASSERY C.C.NO.200/1997 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, MATTANNUR ------------------------------ REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------------------- M.K.JANARDHANAN, S/O.KUNHAPPA, MAVILAKKANDI VEEDU, MADATHIL P.O., PAYAM, IRITTY, KANNUR DISTRICT. BY ADV. SRI.C.P.PEETHAMBARAN RESPONDENT(S): COMPLAINANT AND STATE ------------------------------------------------------------------- 1. K.ANTONY, S/O.THOMAS, KOCHUMURIYIL HOUSE, PERATTA, KOOTTUPUZHA P.O.,PIN- 670 706, VIATHUR AMSOM DESOM, THALASSERY, KANNUR DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.C.A.CHACKO THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts P. Q. BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Crl.R.P. No. 1132 of 2011 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 19th day of April, 2011 O R D E R Revision petitioner is the accused in C.C.No.200 of 1997 on the file of the Judicial Magistrate of the First Class, Mattannur and appellant in Crl.A.No. 105/2001 on the file of the Sessions Court (Adhoc) Fast Track Court-II, Thalassery. 2. The revision petitioner was convicted under section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 5,000/-, in default to undergo simple imprisonment for a further period of one month by the learned Magistrate by judgment dated February 1, 2001, which was confirmed in appeal by the learned Sessions Judge by judgment dated July 29, 2006. The accused has come up in revision challenging his conviction and sentence. 3. The case of the revision petitioner/accused, as testified by him as PW1 before the trial court and as detailed in the complaint, was that the accused borrowed CRRP 1132/2011 2 Rs.1,45,000/- from the complainant and to discharge that liability he issued cheque Ext.P1 dated January 15, 1997 drawn on Iritty Branch of Nedungadi Bank, which when presented for encashment 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 January 28, 1997, the accused did not re-pay the amount. Therefore, the complainant filed the complaint under section 138 of the Negotiable Instruments Act before the Judicial Magistrate of the First Class, Mattannur. 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. The complainant was examined as PW1 and Exts.P1 to P6 were marked on his side. When the accused was questioned under section 313 Cr.P.C. by the learned Magistrate, he denied the entire transaction. No defence evidence was CRRP 1132/2011 3 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 confirmed his conviction and sentence. The accused has come up in revision challenging his conviction and sentence. 6. Heard the learned counsel for the revision petitioner and the learned counsel for the first respondent. 7. The following points arise for consideration :- 1) Whether the conviction of the revision petitioner under section 138 of the Negotiable Instruments Act can be sustained? 2) Whether the sentence imposed is excessive or unduly harsh? 8. Point No.1:- The complainant as PW1 testified in a convincing manner before the trial court regarding the transaction. Nothing was brought out his cross-examination to discredit his evidence. Further, his evidence is supported CRRP 1132/2011 4 by Exts.P1 to P6. 9. The case of the accused as suggested during the cross-examination of PW1 was that the accused borrowed Rs.50,000/- from PW1 and as security for the said amount, he gave signed blank cheque to the complainant, which was misused by the complainant and created Ext.P1. No evidence was adduced by the accused to prove his case before the trial court. Further as the issuance of Ext.P1 cheque was admitted by the accused, presumption as envisaged under sections 108 and 139 of the Negotiable Instruments Act is available to the complainant. No evidence was adduced by the accused to rebut the above presumption. For all these reasons I hold that the trial court as well as the lower appellate court is perfectly justified in accepting the evidence of PW1 and finding the accused guilty of the offence punishable under section 138 of the Negotiable Instruments act and convicting him thereunder. Therefore, I confirm the conviction of the revision petitioner under section 138 of the Negotiable Instruments Act. CRRP 1132/2011 5 10. As regards the sentence, when the revision came up for hearing today, the counsel for the revision petitioner submitted that the revision petitioner paid the entire amount due under Ext.P1 cheque to the first respondent/complainant. The counsel for the first respondent/complainant also admitted the above submission. Therefore a lenient view is taken and I feel that a fine of Rs.1,000/- with default sentence would meet the ends of justice. 11. In the circumstances, the conviction of the revision petitioner under section 138 of the Negotiable Instruments Act is confirmed. As the complainant has received the entire cheque amount from the revision petitioner, the sentence is modified to the effect that the revision petitioner is sentenced to pay fine of Rs.1,000/-, in default to undergo simple imprisonment for one month. Two months' time is granted for payment of fine. 12. It is submitted that the accused is undergoing sentence in Central Prison, Kannur. He shall be released CRRP 1132/2011 6 forthwith, if not required in any other case. Intimate the Superintendent, Central Prison, Kannur forthwith. The Criminal Revision Petition is disposed of as found above. P. Q. BARKATH ALI, JUDGE. mn.