IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 4TH DECEMBER 2009 / 13TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 1262 of 2001() ------------------------------ ( CC.NO.229/1997 OF JFCM -I, KOCHI CRA.NO.403/1999 OF VTH ADDL. SESSIONS COURT, ERNAKULAM) REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------- N.J.GEORGE, S/O JOSEPH, JOBBY BOAT YARD NADUVILTHARA HOUSE, KATTILTHARA EDAKOCHI-KOCHI - 682 006 BY ADV. SRI.THOMAS CHAZHUKKARAN RESPONDENT(S): RESPONDENTS/COMPLAINANT --------------- 1. P.R.XAVIER, S/O RAPHAEL PULIKKAL HOUSE, THOPPUMPADY COCHIN - 5 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM ADV. SRI.T.M.SUNIL FOR R1 PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.1262 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of December, 2009 ORDER Revision petitioner is the accused in C.C.No.229/1997 of Judicial First Magistrate Court II, Kochi and appellant in Crl.Appeal No.403/1999 of V Additional Sessions Court, Ernakulam. He was convicted under Section 138 of Negotiable Instruments Act and was sentenced undergo rigorous imprisonment for seven months which is confirmed in appeal. He was also directed to pay Rs. 1,00,000/- to PW1 as compensation as provided under Section 357(3) Cr.P.C. by the lower appellate court. 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 detailed in the complaint was that accused borrowed Rs. 1,25,000/- from the complainant and to discharge that liability the accused issued the cheque Exts.P1 dated December 10, 1996 for Rs. 1,25,000/- drawn on the Ernakulam branch of Indian Bank which when presented for collection was returned Crl.R.P.No.1262/2001 Page numbers dishounoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of notice Ext.P3, 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 P5 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the accused denied the entire transaction. On th side of the accused DWs 1 and 2 were examined. 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 which is confirmed in appeal. The accused has now come up in revision challenging his conviction and sentence. 5. Heard the counsel for the revision petitioner and the Crl.R.P.No.1262/2001 Page numbers counsel for the first 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 ? Point No.1 7. PWs 1 and 2 were examined and Exts.P1 to P5 were marked on the side of the complainant to prove the guilt of the accused. PW1 is the complainant. PW2 is the Bank Manager. PW1 testified in terms of the complaint before the trial court. Nothing was brought out during his cross examination to disbelieve his evidence. Further his evidence is supported by Exts.P1 to P5 and the evidence of PW 2. 8. The specific case of the accused was that he has given cheque to one of his friends Harish Babu and complainant might have obtained that cheque from him and misused it and created Ext.P1. Crl.R.P.No.1262/2001 Page numbers According to PW1 the accused was introduced to him by DW1. DW1 has no such case when cross examined. Therefore the trial court as well as the lower appellate court is perfectly justified in rejecting the evidence of DWs 1 and 2 and accepting the evidence of PW1 and finding the accused guilty of the offence punishable under Section 138 of Negotiable Instruments Act. That being so, the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act is confirmed. Point No.2 9. As regards the sentence, the trial court sentenced him to undergo rigorous imprisonment for seven months and to pay Rs. 1,00,000/- to PW1 as compensation. On appeal, the sentence was modified to the effect that he is sentenced to undergo simple imprisonment for three months and to pay Rs. 1,00,000/- as compensation to PW1. The transaction is of the year 1997. The cheque is for Rs. 1,25,000/-. Taking into consideration all these aspects, I feel that a a sentence of imprisonment till the rising of court and a fine of Rs. 1,25,000/- would meet the ends of justice. Crl.R.P.No.1262/2001 Page numbers In the result, the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act by the trial court which is confirmed in appeal is upheld. The sentence is modified to the effect that he is sentenced to undergo imprisonment till the rising of court and to pay a fine of Rs. 1,25,000/-, in default, to undergo simple imprisonment for six months. Fine amount, if realised, shall be paid to the complainant as compensation as provided under Section 357(1) Cr.P.C. Two month's time is granted for payment of fine. Revision petitioner shall surrender before the trial court on or before 30-12-2009 to receive the sentence. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.1262/2001 Page numbers Crl.R.P.No.1262/2001 Page numbers P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.1262/2001 Page numbers