IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 1ST JULY 2011 / 10TH ASHADHA 1933 Crl.Rev.Pet.No. 4039 of 2008() ------------------------------ CRA.319/2008 of ADDL. SESSIONS COURT, VADAKARA ST.195/2006 of JUDL.MAGISTRATE OF FIRST CLASS, VADAKARA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED:- ------------------------------ K. DINESAN, S/O. ANANDAN, ASOK SADAN, P.O. VALLIAPPALLY, VADAKARA TALUK. BY ADV. SRI.V.V.SURENDRAN RESPONDENT(S): RESPONDEN/COMPLAINANT AND STATE:- ------------------------- 1. P.K. NARAYANAN, S/O. KANNAN, SREERANG HOUSE, P.O. VALLIAPPALLY, VADAKARA TALUK. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SRI.SUNIL V.MOHAMMED FOR R1 SRI.P.ABDUL JALEEL FOR R1 PUBLIC PROSECUTOR SRI.JAIY PAUL FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Crl.R.P. No. 4039 of 2008 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 1st day of July, 2011 O R D E R Revision petitioner is the accused in S.T.No.195/2006 on the file of the Judicial Magistrate of the First Class, Vatakara and appellant in Crl.A.No.319/2008 on the file of the Addl. District and Sessions Court, Vadakara. He was convicted under section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for one year and to pay compensation of `1,80,000/- to the complainant, in default to undergo simple imprisonment for three months by the learned Magistrate. On appeal by the accused, the lower appellate court confirmed his conviction, but modified the sentence to simple imprisonment for six months and to pay compensation of `1,80,000/-, in default to undergo simple imprisonment for months. The accused has come up in revision challenging his conviction and sentence. CRRP 4039/2008 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, was that the accused borrowed `1,75,000/- from him and to discharge that debt the accused issued cheque Ext.P1 dated July 15, 2005 for `1,75,000/- drawn on Villiappally Panchayat Service Co-operative Bank Ltd., which when presented for collection was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank. In spite of notice Ext.P3 notice dated December 18, 2005, the accused did not re-pay the amount. Therefore, the claimant filed the complaint before the trial court under section 138 of the Negotiable Instruments Act. 3. On receipt of the complaint, the learned Magistrate recorded the sworn statement of the complainant and took cognizance of the offence. The accused on appearance before the trial court, pleaded not guilty to the charge under section 138 of the Negotiable Instruments Act. PWs.1and 2 were examined and Exts.P1 to P5 and Ext.X1 CRRP 4039/2008 3 were marked on the side of the complainant. When the accused was questioned under section 313 Cr.P.C. by the learned Magistrate, he submitted that a signed blank cheque which was entrusted with one Viswan in connection with purchase of a motor cycle and Viswan later handover the cheque to the complainant who misused the same and created Ext.P1. On the side of the accused he was examined as DW1. He produced Ext.D1. 4. The trial court, on an appreciation of the evidence, found the accused guilty of the offence punishable under section 138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him as afore said. On appeal by the accused, the lower appellate court confirmed his conviction but modified the sentence as stated above. The accused has come up in revision challenging his conviction and sentence. 5. Heard the learned counsel for the revision petitioner and the learned counsel for the first respondent/complainant. CRRP 4039/2008 4 6. The following points arise for consideration :- 1) Whether the conviction of the revision petitioner/accused under section 138 of the Negotiable Instruments Act can be sustained? 2) Whether the sentence imposed on the revision petitioner/accused is excessive or unduly harsh ? 7. Point No.1:- The complainant as PW1 testified in terms of the complaint before the trial court. Nothing was brought out during cross-examination to discredit his evidence. Further, his evidence is supported by PW2 and Exts.P1 to P5 and Ext.X1. 8. The case of the accused as suggested during the cross-examination of PW1 and as stated when questioned under section 313 Cr.P.C. by the learned Magistrate and as testified by him as DW1 was that a signed blank cheque was entrusted with one Viswan in connection with purchase of a motor cycle and later he handover the cheque to the complainant who misused the same and created Ext.P1. In an attempt to prove his CRRP 4039/2008 5 case the accused got himself examined as DW1 and produced Ext.X1. The evidence of DW1 does not in any way help the accused to prove his case. Both the courts below have chosen to disbelieve his evidence. I find no reason to come to a different conclusion. 9. As the accused admits execution of Ext.P1, presumption, as envisaged under sections 139 and 118 of the Negotiable Instruments Act, is available to the complainant. No satisfactory evidence was adduced by the accused to rebut the above presumption. 10. Counsel for the revision petitioner argued that there was no sufficient service of notice on the accused and that therefore he has to be acquitted on that ground alone. There is no substance in the abvoe contention. 11. Ext.P3 is the copy of notice dated December 18, 2005. Ext.P4 is the postal receipt. Ext.P5 is the registered cover which was returned unclaimed. The CRRP 4039/2008 6 complainant has examined PW2 the concerned Postman who testified that on December 20, 2005 when he went to the addressee, he was absent and therefore he again went on the next day, that as the accused was absent he gave intimation and even thereafter the accused did not receive the said notice. Ext.X1 is the delivery slip. It is clear from the evidence of PW2 and Ext.X1 that there was sufficient service of notice on the accused. That being so, the above contention of the counsel for the revision petitioner cannot be accepted. 12. Therefore, in my view the trial court as well as the lower appellate court is perfectly justified in believing the evidence of PW1 and convicting the accused under section 138 of the Negotiable Instruments Act. The conviction of the revision petitioner under section 138 of the Negotiable Instruments Act by the trial court which was confirmed in appeal is therefore upheld. CRRP 4039/2008 7 13. As regards the sentence, the trial court imposed a sentence of simple imprisonment for one year and to pay compensation of `1,80,000/- to the complainant, in default to undergo simple imprisonment for three months. The lower appellate court modified the sentence to simple imprisonment for six months and to pay compensation of `1,80,000/- to the complainant, in default to undergo simple imprisonment for three months. The transaction is of the year 2005. Therefore, I feel that sentence of imprisonment till the rising of court and to pay compensation of `1,80,000/- with default sentence would meet the ends of justice 14. In the result, the revision petition is allowed in part. The conviction of the revision petitioner/accused under section 138 of the Negotiable Instruments Act rendered by the trial court which was confirmed in appeal by the lower appellate court is upheld. The sentence imposed on the revision petitioner is modified to the effect that he is sentenced to undergo imprisonment till the rising CRRP 4039/2008 8 of court and to pay compensation of `1,80,000/- to the complainant, in default to undergo simple imprisonment for three months. Amount, if any, deposited by the revision petitioner/accused before the trial court shall be adjusted towards the compensation ordered to be paid. His bail bonds are cancelled. Three months’ time is granted for payment of the compensation. The revision petitioner/accused shall surrender before the trial court on or before July 25, 2011 to suffer the sentence. P.Q.BARKATH ALI, JUDGE. mn CRRP 4039/2008 9 P.Q.BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~ Crl.R.P. No. 221 OF 2002 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~ O R D E R 20-6-2011