IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 22ND OCTOBER 2010 / 30TH ASWINA 1932 Crl.Rev.Pet.No. 950 of 2005() ----------------------------- CRA.175/2002 of ADDL.SESSIONS COURT, KOZHIKODE CC.359/1997 of JUDL. MAGISTRATE OF FIRST CLASS-V, KOZHIKODE .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- NOUSHAD, S/O. AHAMMEDKOYA, KAANTEEI HOUSE, VENGALAM, KOZHIKODE. BY ADV. SRI.K.K.JAYARAJ NAMBIAR RESPONDENT(S): COMPLAINANT & STATE: ----------------------------------- 1. M.K. NARAYANAN KUTTY, S/O. KRISHNAN NAIR MADATHUMKUTTIYIL HOUSE, CHERUVANNUR, KOLATHARA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.V.KUNHIKRISHNAN FOR R1 PUBLIC PROSECUTOR SRI.PUZHAKKARA MUHAMMED THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.A.NO.4742/2005 IN CRL.R.P.NO.950/2005 DISMISSED 22-10-2010 Sd/-, P.Q.BARKATH ALI, JUDGE /True Copy/ P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.950 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of October, 2010 ORDER Challenge in this revision petition by the accused in C.C.No.359/1997 on the Judicial First Class Magistrate V, Kozhikode and appellant in Crl.Appeal No.175/2002 on the file of Sessions Court, Kozhikode is to the judgment of the learned Magistrate dated March 22, 2002 convicting the revision petitioner/accused under Section 138 of Negotiable Instruments Act and sentencing him to undergo simple imprisonment for six months. Set off, if any was also allowed. On appeal by the accused, the lower appellate court confirmed his conviction, but modified the sentence to imprisonment till the rising of court and to pay a compensation of Rs. 60,000/-, in default to undergo simple imprisonment for two months by judgment dated January 24, 2005. 2. The case of the revision first respondent/complainant as testified by him as PW1 before the trial court and as detailed in the Crl.R.P.No.950/2005 2 complaint in brief is this : The accused borrowed Rs.50,000/- from the complainant and to discharge that liability, he issued the cheque Ext.P1 dated November 16, 1996 which when presented for collection was returned dishonoured for want of sufficiency of funds in the account of the accused and that inspite of the notice Ext.P3 issued on February 28, 1997, the accused did not repay the amount. Therefore, the complainant filed the complaint before the trial court under Section 138 of 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 a charge under Section 138 of Negotiable Instruments Act. PW1 was examined and Ext.P1 to P6 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 learned Magistrate on an appreciation of evidence Crl.R.P.No.950/2005 3 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 by the accused, the lower appellate court confirmed his conviction, but modified the sentence as stated 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 out during his cross examination to disbelieve his evidence. Further his evidence is supported by Exts.P1 to P6. 8. The specific case of the accused as suggested during cross Crl.R.P.No.950/2005 4 examination of PW1 and as stated by him when questioned under Section 313 Cr.P.C. was that Ext.P1 cheque was obtained from him forcibly and misusing that cheque, the complainant filed the compliant. But no evidence was adduced by him to prove his case. Therefore, trial court is perfectly justified in rejecting the above version of the accused. That apart, as the execution of the cheque Ext.P1 was admitted by the accused, presumption as envisaged under Section 118 and 139 of Negotiable Instruments Act is available to the complainant. No evidence was adduced by the accused to rebut the above presumption. 9. For all these reasons, I hold that the trial court as well as the lower appellate court is 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 and convicting him thereunder. 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. Set off, if any was also Crl.R.P.No.950/2005 5 allowed. On appeal by the accused, the lower appellate court modified the sentence to imprisonment till the rising of court and to pay a compensation of Rs. 60,000/-, in default to undergo simple imprisonment for two months. I find no special reason to reduce the sentence. In the result, revision petition is dismissed confirming the conviction and sentence rendered by the learned Magistrate which is modified by the lower appellate court. Two month's time is granted for payment of compensation. The revision petitioner shall surrender before the trial court on or before 15/11/2010 to receive the sentence. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.950/2005 6 Crl.R.P.No.950/2005 7 P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.950/2005 8