IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 21ST JANUARY 2011 / 1ST MAGHA 1932 Crl.Rev.Pet.No. 3268 of 2004(C) ------------------------------- CRA.454/2001 of I ADDL. SESSIONS COURT, TRIVANDRUM CC.123/1999 of JUDL. MAGISTRATE OF FIRST CLASS-IV (MOBILE), TRIVANDRUM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- S.R.RAJESH S/O. RAJENDRAN, PLAVILA PUTHEN VEEDU, THOLOOR, ARYANADU P.O., NEDUMANGAD. BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S): RESPONDENTS/COMPLAINANT -------------------------------------- 1. K.KOMALAKUMAR, PROPRIETOR, SREE NARAYANA TRADERS, ARYANADU, RESIDING AT JAYALAYAM, ARYANADU. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.D.KISHORE FOR R1 PUBLIC PROSECUTOR SRI.MUHAMMED PUZHAKKARA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.A.NO.14893/2004 IN CRL.R.P.NO.3268/2004 DISMISSED 21-01-2011 Sd/-, P.Q.BARKATH ALI, JUDGE /True Copy/ PA to Judge P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.3268 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of January, 2011 ORDER Revision petitioner is the accused in C.C.No.123/1999 on the file of Judicial First Class Magistrate IV( Mobile), Thiruvananthapuram and appellant in Crl.Appeal No. 454/2001 of I Additional Sessions Court, Thiruvananthapuram. The learned Magistrate by judgment dated November 17, 2001 convicted him under Section 138 of Negotiable Instruments Act and sentenced him to undergo simple imprisonment for six months and to pay a compensation of Rs. 2,00,000/- under Section 357(3) Cr.P.C. and to pay a cost of Rs. 1,000/- to the complainant under Section 359 Cr.P.C., in default to undergo simple imprisonment for thirty days. On appeal by the accused, the learned Sessions Judge by judgment dated October 21, 2004 modified the sentence to simple imprisonment for three months and to pay a compensation of Rs. 2,00,000/-, in default to undergo simple imprisonment for three months. The accused has now come up Crl.R.P.No.3268/2004 2 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 the accused borrowed Rs. 1,05,000/- on 18/08/1996 and Rs.60,000/- on 28/08/1996 from him for the purchase and repair of a car and to discharge that liability, he issued the cheques Exts. P1 and P2 drawn on PuthenChanthai branch of Canara Bank 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.P5 dated May 4,1999, 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. PW 1 was examined and Exts.P1 to P9 were marked on the side of the complainant. When questioned under Section 313 of Crl.R.P.No.3268/2004 3 Cr.P.C., the accused denied the entire transaction. DW1 was examined and Exts.D1 and D2 were marked on the side of the accused. 4. The learned Magistrate on an appreciation of evidence found the 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/accused and the counsel for the revision first respondent/complainant. 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. Complainant as PW1 testified in a convincing manner before the trial court regarding the transaction. Nothing was brought Crl.R.P.No.3268/2004 4 out during his cross examination to disbelieve his evidence. Further his evidence is supported by Exts.P1 to P9. 8. The specific case of the accused as testified by him as DW1 before the trial court was that himself and the complainant conducted a partnership business by name Sree Narayana Traders and in connection with that he has issued eight blank signed cheques and blank signed stamp paper to the complainant and misusing one of those cheques, complainant has created Exts.P1 and P2 cheques. There is no substance in the above contention. In an attempt to prove his case, the accused produced Ext.D1, a blank signed cheque issued to the complainant. But his evidence or Ext.D1 do not in any way help the accused to prove his case. He has no explanation to offer for not sending any reply to the notice sent by the complainant. Therefore, in my view, both the courts below are justified in rejecting the above case of the accused. Further, as the execution of the cheques Ext.P1 and P2 were admitted by the accused, presumption as envisaged under Section 118 and 139 of Negotiable Instruments Act is available to the complainant. No reliable evidence was adduced by the accused to Crl.R.P.No.3268/2004 5 rebut the above presumption. 9. For all these reasons, I am of the view that the trial court as well as the lower appellate court are perfectly justified in accepting the evidence of PW1 and finding that the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. Therefore I confirm the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act. Point No.2 10. As regards the sentence, the Trial court imposed a sentence of simple imprisonment for six months and to pay a compensation of compensation of Rs. 2,00,000/- under Section 357(3) Cr.P.C. and to pay a cost of Rs. 1,000/- to the complainant under Section 359 Cr.P.C., in default to undergo simple imprisonment for thirty days. On appeal by the accused, the learned Sessions Judge modified the sentence to simple imprisonment for three months and to pay a compensation of Rs. 2,00,000/-, in default to undergo simple imprisonment for three months. Taking into consideration the fact that the transaction is of the year 1998, I feel that a sentence of Crl.R.P.No.3268/2004 6 imprisonment till the rising of court and a compensation of Rs.2,00,000/-, in default to undergo simple imprisonment for one month would meet the ends of justice. In the result, revision petition is allowed in part. The conviction of the revision petitioner under Section 138 of Negotiable Instruments Act is confirmed. The sentence imposed by the trial court which is modified by the lower appellate Court is modified to the effect that he is sentenced to undergo imprisonment till the rising of court and to pay a compensation of Rs. 2,00,000/- to the complainant, in default to undergo simple imprisonment for one month. Two months' time is granted for payment of compensation. The revision petitioner shall surrender before the trial court on or before February 28, 2011 to suffer the sentence. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.3268/2004 7