IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 9TH NOVEMBER 2009 / 18TH KARTHIKA 1931 Crl.Rev.Pet.No. 419 of 2002(C) ------------------------------------------- CRL.A.NO.25/2000 OF ADDL.SESSIONS COURT, KOTTAYAM, CC.NO.283/1994 OF CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM. .................... REVISION PETITIONER/APPELLANT/PETITIONER: ----------------------------------------------------------------------- K.J.GEORGE,S/O.JOSEPH,AGED 47 YEARS KUZHIANKALAYIL HOUSE,PARAMPUZHA,PERUMBAIKADU, KOTTAYAM. BY ADVS. MR.V.SANTHARAM, MR.B.PREMOD. RESPONDENTS/RESPONDENTS & COMPLAINANT: ------------------------------------------------------------------------- 1. MRS.MARYKUTTY THOMAS, W/O.LATE C.V.THOMAS, KOCHUPARAMBIL HOUSE,MARIAPPILLY,KOTTAYAM. 2. STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SMT. REKHA C. NAIR. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/11/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 419 of 2002 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 9th November, 2009 O R D E R Revision petitioner is the accused in C.C.No.283 of 1994 of the Chief Judicial Magistrate, Kottayam and the appellant in Crl.A.No.25 of 2000 of the Addl. Sessions Court, Kottayam. He was convicted under section 138 of the Negotiable Instruments Act and sentenced to undergo rigorous imprisonment for three months and to pay a fine of Rs.3,10,000/-, in default to undergo rigorous imprisonment for one month. Out of the fine amount, if realized, Rs.3,00,000/- was ordered to be paid to the complainant as compensation. On appeal, the lower appellate court confirmed the conviction, sentence of three months imprisonment and fine of Rs.3,10,000/-, but converted the rigorous imprisonment to simple imprisonment. Now the accused has come up in revision challenging his conviction and sentence. 2. The case of the prosecution, as testified by the complainant as PW1 before the trial court and as detailed in the complaint, was that to Crl.RP 419/02 2 discharge the liability of Rs.3,00,000/- towards the complainant, the accused issued cheque Ext.P1 dated January 25, 1994, drawn on the Catholic Syrian Bank Ltd., Puthussery South Branch, which when presented for collection was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank, that in spite of notice Ext.P3 dated April 7, 1994, the accused did not re-pay the amount, which is an offence punishable under section 138 of the Negotiable Instruments Act. 3. 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. PWs.1 to 3 were examined and Exts.P1 to P6 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 transaction and stated that husband of the complainant have approached him and demanded some amount, since he was not having money with him, he issued cheque Ext.P1, subsequently husband of the complainant died and the complainant did not return the cheque. DW1 was examined on the side of the accused to prove his case. The trial court, on an appreciation of the evidence, found the accused guilty of the offence punishable under section 138 of the Negotiable Instruments Crl.RP 419/02 3 Act, convicted him thereunder and sentenced him as afore said, which was confirmed in appeal converting the rigorous imprisonment into simple imprisonment. The accused has come up in revision challenging his conviction and sentence. 4. Heard the learned counsel for revision petitioner and the learned counsel for first respondent. 5. The following points arise for consideration :- 1) Whether the conviction of the revision petitioner by the trial court under section 138 of the Negotiable Instruments Act, which was confirmed in appeal by the lower appellate court, can be sustained? 2) Whether the sentence imposed against the revision petitioner is excessive or unduly harsh? 6. PWs.1 to 3 were examined and Exts.P1 to P6 were marked on the side of the complainant to prove the guilt of the revision petitioner/accused. PW1 the complainant testified in terms of the complaint before the trial court. I have gone through the evidence of PW1. Nothing was brought out in cross-examination to discredit his evidence. Further, his evidence is supported by Exts.P1 to P6 and also by the evidence of PWs.2 and 3. PW2 is the Bank Manager and PW3 is the Postman of Perumbaikadu Post Office who was examined to prove service of notice on the revision petitioner. The trial court as well as the appellate court believed their evidence and came to Crl.RP 419/02 4 the conclusion that the revision petitioner has committed the offence punishable under Section 138 of the Negotiable Instruments Act. I find no reason to come to a different conclusion. 7. The case of the revision petitioner was that husband of the complainant approached him and requested some amount, that as he has no amount with him, he issued a cheque Ext.P1, that later the husband of the complainant died, but the complainant did not return the said cheque and misusing that cheque the complainant has created Ext.P1. There is no substance in the above contention. The revision petitioner examined DW1 to support his case. The trial court as well as the lower appellate court disbelieved the same. I find no reason to come to a different conclusion. For all these reasons I am of the view that the trial court as well as the appellate court is perfectly justified in coming to the conclusion that Ext.P1 cheque is issued by the revision petitioner to discharge his liability towards the complainant. Therefore, I confirm the conviction of the revision petitioner under section 138 of the Negotiable Instruments Act. 8. As regards the sentence, the trial court imposed a sentence of rigorous imprisonment for three months and a fine of Rs.3,10,000/- . Out of which Rs.3,00,000/- was ordered to be paid to the complainant as compensation. The appellate court confirmed the conviction and sentence Crl.RP 419/02 5 converting the sentence of rigorous imprisonment into simple imprisonment. Taking into consideration the fact that the transaction was of the year 1994, I feel that sentence of imprisonment till the rising of court and fine of Rs.3,10,000/-, in default to undergo simple imprisonment for two months would meet the ends of justice. 9. In the result, the revision petition is allowed in part. The conviction of the revision petitioner under section 138 of the Negotiable Instruments Act, rendered by the trial court, which is confirmed in appeal, is upheld. The revision petitioner is sentenced to undergo imprisonment till the rising of the court and to pay fine of Rs.3,10,000/-, in default to undergo simple imprisonment for two months. The fine amount, if realized, Rs.3,00,000/- shall be paid to the complainant as compensation as provided under section 357(1) of the Cr.P.C. His bail bonds are cancelled. Three months’ time is granted for payment of fine. The revision petitioner shall surrender before the trial court on or before 15-12-2009 to receive the sentence. P.Q.BARKATH ALI, JUDGE. mn. Crl.RP 419/02 6 P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 419 of 2002 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= O R D E R 9-11-2009