IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 20TH JANUARY 2011 / 30TH POUSHA 1932 Crl.Rev.Pet.No. 570 of 2005(A) ------------------------------------------- CRA.535/2003 of ADDL. SESSIONS COURT (ADHOC),FAST TRACK COURT-1, THRISSUR CC.135/2001 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, THRISSUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: -------------------------------------------------------------------- PRINCE, S/O. PAUL ANCHERI, EAST BAZAR, TIRUR, THRISSUR. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENT(S): COMPLAINANT & STATE OF KERALA: --------------------------------------------------------------------------------- 1. A.R.MURALEEDHARAN, S/O.RAMAN EZHUTHACHAN AMMANATHU HOUSE, THANGALOOR, THRISSUR. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.FRANCO T.J. R2 BY PUBLIC PROSECUTOR SRI. MUHAMMED PUZHAKKARA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts P.Q.BARKATH ALI, J. ----------------------------------------- Crl..R.P NO.570 OF 2005 ---------------------------------------- Dated this the 20th day of January, 2011 O R D E R Revision petitioner is the accused in C.C.No.135/2001 of Judicial First Class Magistrate Court-I, Thrissur and appellant in Crl.Appeal No.535/2003 of III Addl. Sessions Court (ADHOC) Fast Track Court-1, Thrissur. He was convicted under Section 138 of Negotiable Instruments Act and was sentenced to undergo simple imprisonment for three months and to pay a compensation of Rs.70,000/- and in default to undergo simple imprisonment for three months by the learned Magistrate by judgment dated July 22, 2003. On appeal by the accused the learned Sessions Judge confirmed his conviction, but modified the sentence to imprisonment till the rising of the court and to pay compensation of Rs.70,000/- to the complainant, in default to undergo simple imprisonment for two months. The accused has now come up in revision challenging his conviction and sentence. Crl..R.P NO.570 OF 2005 2 2. The case of the first respondent/complainant as testified by him as PW1 before the trial court and as detailed in the complaint in brief is this: Accused borrowed Rs.70,000/- from the complainant and to discharge the liability, he issued Ext.P1 cheque dated 05.10.2000 for the said amount which when presented for encashment was returned dishounoured for want of sufficiency of funds in the account of the accused in the bank and in spite of notice Ext.P3 dated 10.10.2000, the accused did not repay the amount which is an offence punishable under Section 138 of Negotiable Instruments Act. Therefore, the complainant filed a complaint before the trial Court. 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. Complainant was examined as PW1 and and Exts.P1 to P5 Crl..R.P NO.570 OF 2005 3 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the accused denied the entire transaction. The accused got himself examined as DW1. 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 by the accused learned Sessions Judge confirmed his conviction but modified the sentence as mentioned 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 ? Crl..R.P NO.570 OF 2005 4 2) Whether the sentence imposed is excessive or unduly harsh ? Point No.1 7. The complainant testified as PW1 before the learned Magistrate in terms of the complaint. Nothing was brought out in his cross examination to discredit his evidence. Further his evidence is supported by Ext.P1 to P5. 8. The case of the accused as testified by him as DW1 before the trial court was that he borrowed Rs.10,000/- from one Mr.Johnson and a blank signed cheque was issued to him which was misused by the complainant and created the cheque Ext.P1. But no evidence was adduced by the accused except by examining himself to prove his above case. Further he did not send any reply to the notice Ext.P3. That apart, as accused has admitted the execution of Ext.P1 cheque the presumption under Section 118 and 139 of Negotiable Instruments Act is available for the complainant. No satisfactory evidence was adduced by the accused to rebut the above presumption. Crl..R.P NO.570 OF 2005 5 10. 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, the trial court imposed a sentence of simple imprisonment for three months and to pay a compensation of Rs. 70,000/-, and in default to undergo simple imprisonment for a further period of three months which is confirmed in appeal. The lower appellate court modified the sentence to imprisonment till the rising of court and to pay a compensation of Rs.70,000/- and in default to undergo simple imprisonment for two months. I find no special reason to reduce the sentence. That being so, the revision is to be dismissed confirming the conviction and sentence against the accused. Crl..R.P NO.570 OF 2005 6 In the result, revision petition is dismissed. The accused shall surrender before the trial court on or before 28/2/2011 to suffer the sentence. Three months' time is granted for payment of compensation. His bail bonds are cancelled. P.Q.BARKATH ALI, JUDGE mns