IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 16TH SEPTEMBER 2009 / 25TH BHADRA 1931 Crl.Rev.Pet.No. 7 of 2001() --------------------------- CRA.74/1999 of ADDL.SESSIONS COURT, NORTH PARAVUR CC.819/1996 of JUDL.MAGISTRATE OF FIRST CLASS - I, PARAVUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------- K.K.SUBAIR S/O MUHAMMED KUNJU KODANAT HOUSE OCHIRA P.O. KOLLAM DISTRICT BY ADV. SRI.LAL GEORGE RESPONDENT(S): RESPONDENT/COMPLAINANT --------------- 1. MILTON P.A. S/O ANTONY PADATHURUTHY HOUSE OLANAD VARAPUZHA P.O. 2. STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM ADV. SRI.K.R.GEORGE FOR R1 SRI.JIKKU GEORGE JACOB FOR R1 PUBLIC PROSECUTOR SRI.THOMAS JOHN AMBOOKEN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P .No.7 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of September, 2009 ORDER The revision petitioner is the accused in C.C.No.819/1996 of Judicial First Class Magistrate Court, North Paravur and appellant in Crl.Appeal No.74/1999 of Additional Sessions Court, North Paravur. The revision petitioner was convicted under Section 138 of the Negotiable Instrument Act and sentenced to undergo simple imprisonment for one year by the trial court. The conviction and the sentence of the revision petitioner was confirmed in appeal by the lower appellate court. Now the accused has come up in revision challenging his conviction and sentence. 2. The case of the revision first respondent/complainant as detailed in the complaint and as testified by him as PW1 before the trial court in brief is this. The revision petitioner/accused borrowed an amount of Rs. 70,000/- from PW1 and to discharge that liability, he issued cheque-Ext.P1 on May 25,1996 drawn on the State Bank of Crl.R.P.No.7/2001 Page numbers Travancore, Ochira Branch, Kollam District. When the cheque was presented for collection, it was returned dishonoured for want of sufficiency of funds in the account of the revision petitioner in the bank. In spite of Ext.P5 notice dated 20/6/1996, the revision petitioner did not repay the amount. Hence the revision first respondent filed the complaint before the trial court. 3. On receipt of the complaint, the learned Magistrate recorded the sworn statement of PW1 and took cognizance of the case. The revision petitioner/accused on appearance before the trial court pleaded not guilty to the charge under Section 138 of the Negotiable Instrument Act. PWs 1 and 2 were examined and Exts.P1 to P9 were marked on the side of the complainant. When questioned under Section 313 Cr.P.C. by the trial court, the revision petitioner/accused submitted that he gave a signed blank cheque to the brother of the complainant which was misused by him and created Ext.P1. No defence evidence was adduced. 4. The trial court on an appreciation of evidence found the accused guilty of the offence punishable under Section 138 of the Crl.R.P.No.7/2001 Page numbers Negotiable Instrument Act, convicted him and sentenced him as aforesaid. The lower appellate court confirmed the conviction and sentence of the accused. Now the accused has come up in revision challenging 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 Instrument Act which is confirmed in appeal can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? 6. The learned counsel for the revision petitioner argued that actually the revision petitioner and the brother of the complainant were employed in Doha at that time and that the revision petitioner issued a signed blank cheque to the brother of PW1 which was misused by PW1 and created Ext.P1. The counsel for first respondent/complainant was absent when revision petition came up for hearing. 7. The complainant has testified as PW1 in terms of complaint before the trial court. I have gone through the evidence of PW1, No Crl.R.P.No.7/2001 Page numbers serious discrepancies or inconsistencies were brought out in his cross examination. Further his evidence is supported by Exts.P1 to P5 which shows that the cheque-Ext.P1 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 inspite of the notice- Ext.P5, the revision petitioner did not repay the amount. PW2 is the Branch Manager of Ochira Branch of State Bank of Travancore. Ext.P8 is the true extract of the account of the accused in that bank. Ext.P9 is the cheque return register. Ext.P8 shows that at the time of presentation of cheque, there was no sufficient funds in the account of the revision petitioner in the bank for honouring the cheque. That apart, as the issuance of cheque is admitted by PW1, the presumption under Section 118 and 239 of Negotiable Instrument Act is available to the complainant which is not rebutted by the accused. Therefore the trial court and the appellate court are justified in believing the evidence of PW1 and PW2 and coming to the conclusion that accused has committed an offence punishable under Section 138 of the Negotiable Instrument Act. Crl.R.P.No.7/2001 Page numbers 8. On going through the judgment of the trial court and that of the lower appellate court, I find no jurisdictional error or illegality in the said judgments. Therefore, I am inclined to confirm the conviction of the revision petitioner under Section 138 of the Negotiable Instrument Act rendered by the learned Magistrate which is confirmed in appeal. 9. As regards the sentence, the trial court sentenced the revision petitioner to undergo simple imprisonment for one year which is confirmed in appeal. Taking into consideration the fact that the revision petitioner is aged 55 now and is without any avocation, I feel that a fine of Rs. 70,000/- being the cheque amount will meet the ends of justice. In the result, the revision petition is allowed in part. Conviction of the revision petitioner under Section 138 of the Negotiable Instrument Act rendered by the trial court which is confirmed in appeal is upheld. The sentence is modified to the effect that revision petitioner sentenced to fine of Rs. 70,000/- , in default, to undergo simple imprisonment for three months. Fine amount, if realised, shall be paid Crl.R.P.No.7/2001 Page numbers to PW1 as compensation as provided under Section 357(1) Cr.P.C. His bail bonds are cancelled. Two month's time is granted for payment of fine. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.7/2001 Page numbers