IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 12TH OCTOBER 2009 / 20TH ASWINA 1931 Crl.Rev.Pet.No. 529 of 2001() ----------------------------- CRA.1/1999 of SESSIONS COURT, ALAPPUZHA CC.465/1994 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHERTHALA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------- K.G.DINESH BHATT, KILIKATTU HOUSE C.M.C. 23, CHERTHALA BY ADV. SRI.MAT.PAI SRI.MAHESH T.PAI RESPONDENT(S): RESPONDENTS/COMPLAINANT & THE STATE --------------- 1. G.KARUNAKARAN, REP. BY K.PRAKASAN GEETHALAYAM VAYALAR P.O., CHERTHALA 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM ADV. SRI.S.SANAL KUMAR FOR R1 PUBLIC PROSECUTOR SMT.REKHA C. NAIR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 529 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of October, 2009 ORDER The revision petitioner is the accused in C.C.No.465/1994 of Judicial First Class Magistrate Court, Cherthala and appellant in Crl.Appeal No. 1/1999 of Sessions Court, Alappuzha. The accused was convicted under Section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for six months and to pay compensation of Rs. 1,85,000/- to the complainant. On appeal by the accused, the learned Sessions Judge confirmed the conviction and sentence of the accused. Now the accused has come up in revision challenging his conviction and sentence. 2. The original complainant filed a private complaint before the trial court alleging that the first respondent/accused borrowed Rs. 1,85,000/- from him and to discharge that liability, he issued the cheque Ext.P1 dated April 25, 1994 drawn on the Vayalar branch of Corporation Bank which when presented for collection was returned dishonoured for want of sufficiency of funds in the account of the Crl.R.P.No.529/01 Page numbers accused in the bank and that inspite of the notice - Ext.P3 the accused did not repay the amount which is an offence punishable under Section 138 of the Negotiable Instruments Act. 3. The learned Magistrate on receipt of the complaint recorded the sworn statement of the original complainant and took cognizance of the case. The accused/revision petitioner on appearance before the trial court pleaded not guilty to the charge under Section 138 of the Negotiable Instruments Act. During the pendency of the case, complainant died. Revision first respondent was impleaded as supplemental complainant. On the side of the complainant, revision first respondent was examined as PW1 and Exts.P1 to P10 were marked. When questioned under Section 313 Cr.P.C., the accused denied the entire transaction. On the side of the revision petitioner/accused, DW1 was examined. 4. The learned Magistrate on an appreciation of the evidence found the revision petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid. The lower appellate court Crl.R.P.No.529/01 Page numbers confirmed his conviction and sentence. 5. The following points arise for consideration : 1) Whether the conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act 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 6. Complainant was examined as PW1 and Exts.P1 to P10 were marked on the side of the complainant. He testified in terms of the complaint. I have gone through his evidence. I find no reason to disbelieve his evidence. Further his evidence is supported by Exts. P1 to P10. That apart, when the revision petition came up for hearing , counsel for the revision petitioner submitted that the first respondent has filed O.S.No.82/1996 for recovery of the amount due under the cheque before the Sub Court, Cherthala and got a decree in his favour and that in pursuance of that decree, the first respondent has already paid Rs. 2,75,000/- towards the decree debt . That being so, I am Crl.R.P.No.529/01 Page numbers inclined to confirm the conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act. Point No.2 7. As regards the sentence, taking into consideration the fact that the revision petitioner has paid Rs. 2,75,000/- towards the amount due under the cheque in pursuance of the decree in O.S.No.82/1996 of Sub Court, Cherthala, I am taking a lenient view and modify the sentence to the effect that revision petitioner is sentenced to pay a fine of Rs. 1000/- in default to undergo simple imprisonment for one month. In the result, the revision petition is allowed in part. Conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act is confirmed. The sentence is modified to the effect that he is sentenced to pay a fine of Rs. 1,000/- in default to undergo simple imprisonment for one month. Ten day's time is granted for payment of fine. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.529/01 Page numbers P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.529/01 Page numbers