IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 18TH DECEMBER 2009 / 27TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 1420 of 2002() ------------------------------ CRA.185/1997 of SESSIONS COURT, KASARAGOD STC.791/1996 of JUDL.MAGISTRATE OF FIRST CLASS-I, HOSDRUG .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- P. KUNHABDULLA, S/O. ABDUL RAHIMAN HAJI, RESIDING AT PADANEKKAT, KANHANGAD VILLAGE, HOSDURG TALUK, KASARAGOD. BY ADV. SRI.M.SASINDRAN SRI.K.P.HARISH RESPONDENT(S): RESPONDENTS/COMPLAINANT: --------------------------------------- 1. T.P. BINURAJ,S/O. T. GOPALAN, RESIDING AT THRITHANAKKARAN, KANHANGAD VILLAGE, HOSDURG TALUK, KASARAGOD. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.KODOTH SREEDHARAN FOR R1 R2 BY PUBLIC PROSECUTOR SRI K.J.MOHAMED ANZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P. 1420 of 2002 ------------------------------------------------------ Dated: DECEMBER 18, 2009 ORDER The challenge in this revision is to the judgment of Judicial First Class Magistrate-I, Hosdurg in STC 791/1996 dated September 30, 1997 convicting the revision petitioner/accused under sec.138 of the Negotiable Instruments Act and sentencing him to undergo rigorous imprisonment for three months and to pay a fine of Rs.70,000/-, in default to undergo rigorous imprisonment for three months, which is confirmed in appeal by the Sessions Court, Kasaragod in Crl.A.185/1997 by judgment dated August 16, 2002. Out of the fine amount, if realised, Rs.68,000/- was ordered to be paid to the complainant as compensation. The accused has now come up in revision challenging his conviction and sentence. 2. The case of the revision 1st respondent/complainant as testified by him as PW.1 before the trial court and as detailed in the complaint was that the accused borrowed Rs.65,000/- from the complainant on July 23, 1995, and to discharge that liability the accused issued the cheque Ext.P1 dated February 11, 1996 drawn on the Canara Bank, Nileshwar Branch which, when presented for collection, was returned dishonoured for want of sufficiency of funds in the account of the revision petitioner in the bank and that in spite of Crl.R.P. 1420/02 2 the notice Ext.P3 dated Feburary 28, 1996, the accused did not repay the amount, which is an offence punishable under sec.138 of the Negotiable Instruments Act. 3. 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 stated that the father of the complainant was the President of SNDP Gurumandiram was conducting a chitty, that when the accused joined in that chitty a signed blank cheque was obtained by the father of the complainant which was misused by the complainant and created Ext.P1. No defence evidence was adduced. 4. The trial court on an appreciation of evidence found the revision petitioner/accused 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. Crl.R.P. 1420/02 3 5. Heard the counsel for the revision petitioner/accused and the revision 1st respondent/complainant. 6. 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 7. The complainant was examined as PW.1 and the Bank Manager as PW.2. The complainant produced Exts.P1 to P6 to prove his case. No serious inconsistencies were pointed out during his cross-examination to discredit his evidence. Further his evidence is supported by Exts.P1 to P6 and the evidence of PW.2, the Bank Manager. 8. The case of the revision petitioner/accused when questioned under sec.313 Cr.P.C. by the trial court was that a signed blank cheque was given to the father of the complainant who was the President of SNDP Gurumandiram and was conducting a chitty and misusing that cheque Ext.P1 was created. No evidence was adduced by the accused to prove his case. That apart, as the accused has admitted the issuance of the cheque Ext.P1, the presumption under Crl.R.P. 1420/02 4 secs.118 and 139 of the Negotiable Instruments Act is available to the complainant. The accused did not adduce any evidence 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 is perfectly justified in accepting the evidence of PW.1 and coming to the conclusion that the accused has committed an offence punishable under sec.138 of the Negotiable Instruments Act and convicting him thereunder. Therefore his conviction under sec.138 is confirmed. Point No.II 10. As regards the sentence, the trial court imposed a sentence of rigorous imprisonment for three months and to pay a fine of Rs.70,000/-, 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.75,000/- would meet the ends of justice. 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 Crl.R.P. 1420/02 5 that he is sentenced to undergo imprisonment till the rising of court and to pay a fine of Rs.75,000/-, in default to undergo simple imprisonment for three months. Out of the fine amount, if realised, Rs.70,000/- shall be paid to PW.1/the complainant as compensation as provided under sec.357(1) of Cr.P.C. His bail bonds are cancelled. Two months time is granted for payment of fine. The fine amount, if any, deposited by the revision petitioner before the trial court shall be adjusted towards the fine imposed and the complainant will be entitled to withdraw that amount. The accused/revision petitioner shall surrender before the trial court on or before 15.1.2010 to receive the sentence. P.Q. BARKATH ALI, JUDGE CRL.M.P.7997 of 2002 Dismissed. 18.12.2009 P.Q. BARKATH ALI, JUDGE mt/-