IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 19TH NOVEMBER 2009 / 28TH KARTHIKA 1931 Crl.Rev.Pet.No. 1057 of 2002(A) -------------------------------------------- CRL.A.NO.203/1996 OF SESSIONS COURT, THALASSERY, CC.NO.347/1995 OF JUDL.MAGISTRATE OF FIRST CLASS COURT, MATTANNUR. .................... REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------------- JEEVARAJAN, S/O. KUNHIRAMAN, PAYAM AMSOM DESOM, IRITTY, KANNUR DISTRICT. BY ADV. MR.P.NARAYANAN. RESPONDENTS/RESPONDENTS/COMPLAINANT: ---------------------------------------------------------------------- 1. JOHN. C.D., S/O. DEVASIA, VILAMANA AMSOM, KILIANTHARA, IRITTY (VIA), KANNUR DISTRICT. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT. REKHA C. NAIR. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/11/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.R.P. NO. 1057/2002-A: ORDER ON CRL.M.P. NO. 5632/2002 IN CRL.R.P. NO. 1057/2002-A DISMISSED 19/11/2009. SD/- P.Q.BARKATH ALI, JUDGE. //TRUE COPY// P.A. TO JUDGE. Prv. P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.1057 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of November, 2009 ORDER Revision petitioner is the accused in C.C.No.347/1995 of Judicial First Class Magistrate Court, Mattannur and appellant in Crl.Appeal No.203/1996 of Sessions Court, Thalassery. He was convicted under Section 138 of Negotiable Instruments Act and was sentenced to undergo rigorous imprisonment for six months by the trial court which is confirmed in appeal. Now the accused has come up in revision challenging his conviction and sentence. 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 accused borrowed Rs. 1,40,000/- from him and to discharge that liability, he issued the cheque Ext.P1 dated 10-02-1995 for the same amount drawn on the Federal Bank of Vallithode branch which when presented for collection was returned dishounoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of notice Ext.P3 dated 15-02-1995, the accused did not repay Crl.R.P.No.1057/2002 Page numbers the amount which is an offence punishable under Section 138 of Negotiable Instruments Act. 3. The learned Magistrate on receipt of the complaint 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. PWs 1 and 2 were examined and Exts.P1 to P5 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C the accused submitted that he had partnership business with one Thankachan to whom he issued a blank signed cheque which was misused by the complainant and created Ext.P1. No defence evidence was adduced. 4. The trial court 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 which is confirmed in appeal. The accused has now come up in revision challenging his conviction and sentence. Crl.R.P.No.1057/2002 Page numbers 5. Heard the learned counsel for the revision petitioner and the learned counsel for the first respondent/complainant. 6. 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 7. Complainant as PW1 testified in terms of his complaint. I have gone through the evidence of PW1. Nothing was brought out during his cross examination to discredit his evidence. Further his evidence is supported by Exts.P1 to P5 and the evidence of PW2, the Manager of the bank. 8. The case of the accused is that he has issued a blank signed cheque to one Thankachan which was misused by the complainant and created Ext.P1. But no evidence is adduced on the side of the accused to prove the said case. He has also not sent any reply to the notice Crl.R.P.No.1057/2002 Page numbers issued by the complainant. If he has actually not issued the cheque, he would have send a reply to the notice. Therefore both the courts below have rightly rejected the above contention of the accused. No other point is argued before me. I have already chosen to believe the evidence of PW1 regarding the transaction. For all these reasons, I am of the view that both the courts below is perfectly justified in accepting the evidence of PW1 and holding that the revision petitioner issued the cheque Ext.P1 to discharge his liability to PW1 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 the notice the revision petitioner did not repay the amount. That being so, the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act has to be confirmed. Point No.2 9. As regards the sentence, revision petitioner was sentenced to undergo rigorous imprisonment for six months by the trial court which is confirmed in appeal. The transaction is of the year 1996. Taking into consideration the above aspects, I feel that a sentence of Crl.R.P.No.1057/2002 Page numbers imprisonment till the rising of court and a fine of Rs. 1,40,000/- being the cheque amount would meet the ends of justice. In the result, revision petition is allowed in part. Conviction of the revision petitioner under Section 138 of Negotiable Instruments Act is confirmed. He is sentenced to undergo imprisonment till the rising of court and to pay a fine of Rs. 1,40,000/-, in default, to undergo simple imprisonment for three months. Fine amount, if realised, shall be paid to PW1 as compensation as provided under Section 357(1) Cr.P.C. His bail bonds are cancelled. The revision petitioner shall surrender before the trial court on or before 15-12-2009 to receive the sentence. Two month's time is granted for payment of fine. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. 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