IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 17TH DECEMBER 2009 / 26TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 1246 of 2002() ------------------------------ CRA.130/1997 of SESSIONS COURT, KASARAGOD STC.2814/1995 of JUDL.MAGISTRATE OF FIRST CLASS-I, HOSDURG .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- K.P. ABDULKHADER, S/O. ABDULLA HAJI, NEAR KALANAD MAZJID, P.O. KALANAD, KASARAGOD TALUK. BY ADV. SRI.V.N.ACHUTHA KURUP, SENIOR ADVOCATE RESPONDENT(S): COMPLAINANT & STATE: ----------------------------------- 1. K. SURESH, S/O. LATE KUNHAMBU, GARDER VALAPPU, KOTTACHERRY, P.O. KANHANGAD. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.T.MADHU FOR R1 R2 BY PUBLIC PROSECUTOR SRI AMJAD ALI THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P. 1246 of 2002 ------------------------------------------------------ Dated: DECEMBER 17, 2009 ORDER The challenge in this revision petition is to the judgment of Judicial First Class Magistrate Court-I, Hosdurg in STC 1814/1995 dated July 24, 1997 convicting the accused under sec.138 of the Negotiable Instruments Act and sentencing him to undergo rigorous imprisonment for six months and to pay a fine of Rs.55,000/-, in default to undergo rigorous imprisonment for three months, which is confirmed in appeal by the Sessions Court, Kasaragod in Crl.A.130/1997 by judgment dated August 9, 2002. Out of the fine amount Rs.53,000/- was ordered to be paid to the complainant as compensation. The accused has now come up in revision challenging his conviction and sentence. 2. On receipt of the complaint the learned magistrate recorded the sworn statement of the complainant/PW.1 and took cognizance of the offence. The accused on appearance before the trial court pleaded not guilty to the charge under sec.138 of the Negotiable Instruments Act. PWs.1 and 2 were examined and Exts.P1 to P6 were marked on the side of the complainant. When questioned under sec.313 Cr.P.C. by the trial court, the accused denied the entire transaction. No defence evidence was adduced. Crl.R.P.1246/02 2 3. The learned magistrate on an appreciation of evidence found the revision petitioner guilty of the offence punishable under sec.138 of the 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. 4. Heard counsel for the revision petitioner and the revision 1st respondent/complainant. 5. The following points arise for consideration:- I. Whether the conviction of the revision petitioner under sec.138 of the Negotiable Instruments Act can be sustained? II. Whether the sentence imposed is excessive or unduly harsh? Point No.I 6. PWs.1 and 2 were examined and Exts.P1 to P6 were marked on the side of the complainant to prove the guilt of the accused. PW.1 testified in terms of the complaint before the trial court. No serious discrepancies were brought out during his cross-examination to discredit his evidence. Further his evidence is supported by Exts.P1 to P6 and by PW.2, the Bank Manager. 7. The case of the revision petitioner when questioned under Crl.R.P.1246/02 3 sec.313 Cr.P.C. by the trial court was that Ext.P1 cheque was issued not from his account, but by another person by name P.Abdulkhader with a different address. There is no substance in the above contention. PW.2, the Bank Official, has testified that the said account is that of the accused. The defence counsel was not able to shake her evidence in cross-examination. Therefore both the courts below have rejected the above contention. 8. For all these reasons accepting the evidence of PW.1 I hold that both the courts below are perfectly justified in finding that the complainant has succeeded in proving that the accused has committed an offence punishable under sec.138 of the Negotiable Instruments Act and convict him thereunder. Point No.II 9. As regards the sentence, the trial court imposed a sentence of rigorous imprisonment for six months and to pay a fine of Rs.55,000/-, in default to undergo rigorous imprisonment for a further period of three months, which is confirmed in appeal. The transaction is of the year 1995. Therefore I feel that a sentence of imprisonment till the rising of court and a fine of Rs.5,000/- would meet the ends of justice. The accused is also directed to pay a compensation of Rs.55,000/- to the complainant. Crl.R.P.1246/02 4 In the result, the revision petition is allowed in part. The conviction of the revision petitioner under sec.138 of the Negotiable Instruments Act is confirmed. 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.5,000/-, in default to undergo simple imprisonment for three months. The accused is also ordered to pay a compensation of Rs.55,000/- to the complainant/PW.1 as provided under sec.357(3) of Cr.P.C., in default to undergo simple imprisonment for three months. His bail bonds are cancelled. Three months time is granted for payment of fine and compensation. The accused/revision petitioner shall surrender before the trial court on or before 8.1.2010 to receive the sentence. P.Q. BARKATH ALI, JUDGE CRL.M.P.6894 of 2002 Dismissed. 17.12.2009 P.Q. BARKATH ALI, JUDGE mt/-