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. 542 of 2003() ----------------------------- CC.482/1996 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM CRA.355/2000 of ADDL.SESSIONS COURT, KOTTAYAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------- O.K.MURALEEDHARAN NAIR, THAZHATHALUPPANKARA, KAVIYOOR P.O., THIRUVALLA (M/S. BHARATH AIR TRAVELS, REPRESENTED BY ITS MANAGING DIRECTOR, O.K.MURALEEDHARAN NAIR, KOONIYIL BUILDINGS, NEAR MAHADEVA TEMPLE, KAVIYOOR, THIRUVALLA. BY ADV. SRI.M.P.MADHAVANKUTTY RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE --------------- 1. SRI.P.M.ABRAHAM, PROPRIETOR, JANATHA TIMBERS, S.H. MOUNT P.O., NAGAMPADAM, KOTTAYAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.JAMES KURIAN FOR R1 SRI.SANTHOSH MODAYIL FOR R1 PUBLIC PROSECUTOR SRI.K.J.MOHAMMED 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.No.542 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of December, 2009 ORDER Revision petitioner is the accused in C.C.No.482/1996 of Chief Judicial Magistrate Court, Kottayam and appellant in Crl.Appeal No.355/2000 of Additional Sessions Judge (Spl.) , Kottayam. He was convicted under Section 138 of Negotiable Instruments Act and was sentenced to undergo rigorous imprisonment for three months and to pay a fine of Rs. 12,000/-, in default, to undergo simple imprisonment for one month by the trial court. Out of the fine amount, Rs. 10,000/- was ordered to be paid to the complainant as compensation. On appeal by the accused, his conviction was confirmed, but the sentence was reduced to simple imprisonment for 15 days and to pay a compensation of Rs. 12,000/- . The accused has now 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 Crl.R.P.No.542/03 Page numbers that complainant has issued the cheque Ext.P1 dated November 30, 1995 to one Varghese Thomas in discharge of his debt to him drawn on the State Bank of Travancore, Kaviyoor branch , that the complainant is the holder in due course of the said cheque, which when presented for collection was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of the notice Ext.P4 dated July 12, 1996, the accused did not repay the amount which is an offence punishable under Section 138 of Negotiable Instruments Act. 3. On receipt of the complaint, the learned Magistrate 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 P7 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the accused denied the entire transaction. No defence evidence was adduced. 4. The trial court on an appreciation of evidence found the Crl.R.P.No.542/03 Page numbers revision petitioner guilty of the offence punishable under Section 138 of Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid. On appeal his conviction was confirmed but the sentence was modified as mentioned above. The accused has now come up in revision challenging his conviction and sentence. 5. Heard the counsel for the revision petitioner and first revision respondent. 6. The following points arise for consideration : 1) Whether the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act rendered 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. The complainant as PW1 testified in terms of the complaint before the trial court. The person to whom the accused originally issued the cheque was examined as PW2. Complainant produced Crl.R.P.No.542/03 Page numbers Exts.P1 to P7 before the trial court. I have gone through the evidence of PW1. Nothing was brought out during his cross examination to disbelieve his evidence. Further his evidence is supported by Exts.P1 to P7 and the evidence of PW 2. 8. The case of the accused was that he is not the Managing partner of a travel agency as stated by PW2, that he got into contact with someone at Bombay and arranged a visa for PW2 and also handed over copy of the Visa to PW2, that it was at that time accused issued the cheque to PW2 which was misused by PW1 and created Ext.P1. No evidence is adduced by the accused to prove his case. That part accused admitted the issuance of the cheque Ext.P1. Therefore the presumption under Sections 118 and 139 of Negotiable Instruments Act is available for the complainant. Accused did not adduce any evidence to rebut the above presumption. 9. For all these reasons, I am inclined to hold that trial court as well as the lower appellate court is justified in accepting the evidence of PWs 1 and 2 and coming to the conclusion that accused has committed the offence punishable under Section 138 of Negotiable Crl.R.P.No.542/03 Page numbers Instruments Act. Therefore, I confirm the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act. Point No.2 10. Regarding the sentence, the trial court imposed a sentence of rigorous imprisonment for three months and to pay a fine of Rs 12,000/-, in default to undergo rigorous imprisonment for one month. Out of the fine amount, Rs. 10,000/- was ordered to be paid to the complainant as compensation. On appeal, the lower appellate court reduced the sentence to simple imprisonment for 15 days and accused was directed to pay a compensation of Rs. 3000/- to the complainant. Taking into consideration the aspect that the transaction took place in 1995, I feel that a sentence of imprisonment till the rising of court and a fine of Rs. 15,000/- would meet the ends of justice. In the result, the revision petition is allowed in part. Conviction of the revision petitioner under Section 138 of Negotiable Instruments Act is confirmed. The sentence is modified to the effect that he is sentenced to undergo imprisonment till the rising of court and to pay a fine of Rs. 15,000/-, in default, to undergo simple imprisonment for six Crl.R.P.No.542/03 Page numbers months. The fine amount, if realised, Rs. 13,000/- shall be paid to the complainant as compensation as provided under Section 357(1) Cr.P.C. If any amount is deposited by the accused before the trial court towards fine, it shall be adjusted towards the fine imposed. The complainant will be entitled to withdraw that amount. The revision petitioner shall surrender before the trial court on or before 20-01-2010 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. Crl.R.P.No.542/03 Page numbers