IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 16TH NOVEMBER 2010 / 25TH KARTHIKA 1932 Crl.Rev.Pet.No. 2826 of 2004(C) ------------------------------------------- CRA.689/2001 of ADDL.SESSIONS COURT, KOZHIKODE CC.285/1999 of JUDL. MAGISTRATE OF FIRST CLASS-V, KOZHIKODE .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ----------------------------------------------------------------- T.K.BALAN, S/O.APPU, PUNNATH AYYAPPAN KAVU PARAMBA, PALLIPPURAM, P.O.OLAVANNA, KOZHIKODE DISTRICT. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): RESPONDENT/COMPLAINANT STATE -------------------------------------------------------------------------------- 1. A.PADMANABHAN, S/O.KARUNAKARAN, AYANIKKATT HOUSE, PANTHEERANKAVU, KOZHIKODE DIST. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 BY ADV. SRI.SUNNY MATHEW R2 BY PUBLIC PROSECUTOR SRI.MUHAMMED PUZHAKKARA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A. NO.12929/2004 IN CRRP. 2826/2004 DISMISSED 16/11/2010 SD/- P.Q.BARKATH ALI, JUDGE TRUE COPY P.A. TO JUDGE tss P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.2826 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of November, 2010 ORDER Revision petitioner is the accused in C.C.No.285/1999 on the file of Judicial First Class Magistrate Court V, Kozhikode and appellant in Crl.Appeal No.689/2001 of Sessions Court, Kozhikode. He was convicted under Section 138 of Negotiable Instruments Act and was sentenced to undergo simple imprisonment for three months by the learned Magistrate by judgment dated November 29, 2001. On appeal, by judgment dated September 13, 2004, the lower appellate court confirmed his conviction, but modified the sentence to simple imprisonment for one month and to pay a compensation of Rs. 25,000/- to the complainant, in default, to undergo simple imprisonment for a further period of one month. The accused has now come up in revision challenging his conviction and sentence. 2. The case of the revision first respondent/complainant as testified by him as PW1 before the trial court and as detailed in the complaint was that accused borrowed Rs. 25,000/- from him on Crl.R.P.No.2826/2004 2 October 15, 1999 and to discharge that liability, he issued the cheque Ext.P1 dated November 21, 1998 which when presented for collection 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.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 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. PW 1 was examined 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. Accused himself was examined as DW1 before the trial court. 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, the lower appellate court confirmed his conviction, but modified the sentence as mentioned Crl.R.P.No.2826/2004 3 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. Nothing was brought out during his cross examination to disbelieve his evidence. Further his evidence is supported by Exts.P1 to P6. 8. The specific case of the accused as testified by him as DW1 before the trial court was that it is true that he has borrowed Rs. 25,000/- from the complainant and issued Ext.P1, but he has already paid some amount in discharge of that liability and only Rs. 9,700/- is due to the complainant from him. But no document is Crl.R.P.No.2826/2004 4 produced to prove his plea of partial discharge. Therefore, in my view, both the courts below are justified in rejecting the above case of the accused. Further, as the execution of Ext.P1 cheque was admitted by the accused, presumption as envisaged under Section 118 and 139 of Negotiable Instruments Act is available to the complainant. No reliable evidence was adduced by the accused to rebut the above presumption. 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, it is admitted that in respect of the same transaction, a suit was filed by the complainant and the same was settled on condition that the accused will pay the amount due to the complainant in this case. Therefore, a lenient view is taken and I feel that a sentence of imprisonment till the rising of court and a compensation of Rs. 25,000/- with default sentence would meet the Crl.R.P.No.2826/2004 5 ends of justice. In the result, revision petition is allowed in part. The conviction of the revision petitioner under Section 138 of Negotiable Instruments Act is confirmed. The sentence is modified to the effect that revision petitioner is sentenced to undergo imprisonment till the rising of court and to pay a compensation of Rs. 25,000/- to the complainant, in default to undergo simple imprisonment for one month. The amount, if any, deposited by the revision petitioner before the trial court shall be adjusted towards the compensation amount ordered to be paid. The complainant is permitted to withdraw that amount. Two month's time is granted for payment of the balance amount of compensation. The revision petitioner is permitted to pay the balance amount of compensation direct to the complainant and produce memo before the trial court. The revision petitioner shall surrender before the trial court on or before 20/12/2010 to receive the sentence. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.2826/2004 6