IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 20TH JUNE 2011 / 30TH JYAISHTA 1933 Crl.Rev.Pet.No. 3224 of 2004() ------------------------------ CRA.275/1998 of SESSIONS COURT, THALASSERY CC.179/1996 of JUDL.MAGISTRATE OF FIRST CLASS COURT, MATTANNUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED:- -------------------------------------- RAMESHAN, S/O.KANARAN, KEEZHUR AMSOM, PUNNAD DESOM. BY ADV. SRI.P.V.MOHANAN RESPONDENT(S): RESPONDENTS/COMPLAINANT/STATE -------------------------------------------- 1. KELAMBATH SREEDHARAN, S/O.KUNHAMBU, KEEZHALLUR AMSOM, THERUR P.O., EDAYANNUR. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. P.P. SRI. SABU SREEDHARAN FOR R2. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Crl.R.P. No. 3224 of 2004 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 20th day of June, 2011 O R D E R Revision petitioner is the accused in C.C.No.179/1996 on the file of the Judicial Magistrate of the First Class, Mattannur and the appellant in Crl.Appeal No.275/1998 on the file of the Court of Session, Thalassery. He was convicted under Section 138 of the Negotiable Instruments Act and sentenced to undergo rigorous imprisonment for six months by the trial court. On appeal, the lower appellate court confirmed his conviction but modified the sentence to simple imprisonment for one month. 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 CRRP 3224/2004 2 detailed in the complaint, is that the accused borrowed ` 20,000/- from him and to discharge that liability, he issued a cheque dated February 6, 1996 drawn on the Vallithode Branch of Federal Bank, which when presented for collection was returned dishonoured for want of sufficiency of fund in the account of the revision petitioner in the bank and that in spite of notice Ext.P3 dated February 22, 1996 the accused did not repay the amount. Therefore, he filed a complaint before the trial court under section 138 of the Negotiable Instruments Act. 3. The accused on appearance before the trial court pleaded not guilty to the charge under Section 138 of the 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 Cr.P.C. by the learned Magistrate the accused stated that in connection with a vehicle CRRP 3224/2004 3 transacation as security he issued a blank signed cheque to PW1, that he has repaid the entire amount due to the complainant and that the complainant misused that cheque and created Ext.P1. Ext.D1 agreement was marked on the side of the accused. 4. Heard the counsel for the revision petitioner and the counsel for first respondent. 5. The following points arise for consideration :- 1) Whether the conviction of the revision petitioner by the trial court under section 138 of the Negotiable Instruments Act, which was confirmed in appeal by the lower appellate court, can be sustained? 2) Whether the sentence imposed against the revision petitioner is excessive or unduly harsh? 6. Point No.1: Complainant was examined as PW1 and Exts.P1 to P5 were marked on the side of the complainant to prove the guilt of the accused. PW1 testified in terms of the complaint. Nothing was brought out to discredit his evidence. Further, his evidence is CRRP 3224/2004 4 supported by Exts.P1 to P5. 7. The case of the accused when questioned under section 313 Cr.P.C. by the learned Magistrate was that in connection with a vehicle transaction, he had issued a blank signed cheque as security to the complainant, which was misused by the complainant and created in Ext.P1 and that he has already paid the amount due to the complainant. But, no evidence was adduced by the accused to prove his case. Further, 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. 8. For all these reasons, I hold that 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 CRRP 3224/2004 5 Negotiable Instruments Act. Therefore, the conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act by the trial court which was confirmed in appeal is upheld. 9. Point No.2:- As regards the sentence, the trial court imposed a sentence of rigorous imprisonment for six months. The lower appellate court modified the sentence to simple imprisonment for one month. The transaction is of the year 1996. Therefore, a lenient view is taken and I feel that a sentence of imprisonment till the rising of court and to pay compensation of ` 20,000/- with default sentence would meet the ends of justice 10. 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 CRRP 3224/2004 6 that he is sentenced to undergo imprisonment till the rising of court and to pay compensation of ` 20,000/- to the complainant, in default to undergo simple imprisonment for two 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. Two months’ time is granted for payment of the compensation. The revision petitioner shall surrender before the trial court on or before July 15, 2011 to suffer the sentence. P.Q.BARKATH ALI, JUDGE. mn CRRP 3224/2004 7 P.Q.BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~ Crl.R.P. No. 3224 of 2004 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~ O R D E R 20-6-2011