IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 3RD DECEMBER 2009 / 12TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 3012 of 2003() ------------------------------ CRA.59/2002 of SESSIONS COURT, KOTTAYAM ST.2089/1998 of JUDL.MAGISTRATE OF FIRST CLASS - I, ETTUMANUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- CHACKO VARGHESE, PROPRIETOR, PAUL AGENCIES, ST.GEORGE STREET, ALAPPUZHA. BY ADV. SRI.MOHAN IDICULLA ABRAHAM SRI.MARTIN D.ALUMKARA SRI.ROY GEORGE RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ----------------------------------- 1. N.P. THOMAS, PROPRIETOR, N.T.P. CORPORATION, ETTUMANOOR. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR. ADV. SRI.JOSE PALLATTUKARAN FOR R1 SRI.K.J.VINCENT FOR R1 R2 BY PUBLIC PROSECUTOR SRI C.M. KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P. 3012 of 2003 ------------------------------------------------------ Dated: DECEMBER 3, 2009 ORDER The revision petitioner is the accused in ST Case No.2089/1998 of the Judicial First Class Magistrate Court, Ettumanoor, and the appellant in Crl.A.No.59/2002 of Sessions Court, Kottayam. He was convicted under sec.138 of the Negotiable Instruments Act and was sentenced to undergo simple imprisonment for three months and also to pay a fine of Rs.25,000/- to the complainant which is confirmed in appeal. The accused has now come up in revision challenging his conviction and sentence. 2. The case of the revision 1st respondent/complainant as testified by him as PW.1 before the trial court and as detailed in the complaint in brief is that towards the price of the cement purchased by the accused from the complainant, the accused issued a cheque Ext.P1 dated 22.9.1997 for Rs.28,000/- drawn on the Lord Krishna Bank, Alappuzha Branch, 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 January 15, 1998, the accused did not repay the amount, which is an CRL. R.P. 3012 of 2003 2 offence punishable under sec.138 of the Negotiable Instruments Act. 3. On receipt of the complaint, the learned Magistrate recorded the sworn statement of the complainant/PW.1 and took cognizance of the case. The accused on appearance before the trial court pleaded not guilty to the charge under sec.138 of the Negotiable Instruments Act. PWs.1 and 2 were examined and Exts.P1 to P12 were marked on the side of the complainant. When questioned under sec.313 Cr.P.C. the accused denied the entire transaction. No defence evidence was adduced. 4. The learned magistrate on an appreciation of evidence found the accused guilty of the offence punishable under sec.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. 5. Heard the learned counsel for the revision petitioner and the revision 1st respondent. 6. The following points arise for consideration:- I. Whether the conviction of the revision petitioner under sec.138 of the Negotiable Instruments Act can be sustained? II. Whether the sentence imposed is excessive or unduly harsh? CRL. R.P. 3012 of 2003 3 Point No.I 7. PWs.1 and 2 were examined and Exts.P1 to P12 were marked on the side of the complainant to prove the guilt of the accused. PW.1 is the complainant. He has testified in terms of the complaint. I have gone through the evidence of PW.1. No serious discrepancies were pointed out in cross-examination to discredit his evidence. His evidence is supported by Exts.P1 to P12 and the evidence of PW.2, manager of the bank. 8. The case of the accused was that he has given Ext.P1 cheque to the complainant as security during the business transaction. But no evidence was adduced by the accused to prove the same. Further, the accused admits the execution of Ext.P1 cheque. Therefore the presumption under secs.118 and 139 of the Negotiable Instruments Act is available to the complainant. The accused did not produce any evidence to rebut the above presumption. For all these reasons I am of the view that both the trial court as well as the lower appellate court are justified in accepting the evidence of PWs.1 and 2 and coming to the conclusion that the cheque Ext.P1 was issued by the accused to discharge his liability towards the complainant and that the same when presented for collection was returned dishonoured for want CRL. R.P. 3012 of 2003 4 of sufficiency of funds in the account of the accused in the bank and that in spite of the notice Ext.P4 dated January 15, 1998, the accused did not repay the amount, which is an offence punishable under sec.138 of the Negotiable Instruments Act. The conviction of the revision petitioner under sec.138 of the Negotiable Instruments Act is therefore confirmed. Point No.II 9. As regards the sentence, the trial court imposed a sentence of simple imprisonment for three months. The accused was also directed to pay a compensation of Rs.25,000/- to the complainant which is confirmed in appeal. Taking into consideration that the transaction is of the year 1998, I feel that a sentence of simple imprisonment till the rising of court and a fine of Rs.30,000/- would meet the ends of justice. In the result, the revision petition is allowed in part. The conviction of the revision petitioner/accused under sec.138 of the Negotiable Instruments Act is confirmed. The sentence is modified to the effect that the accused is sentenced to undergo simple imprisonment till the rising of court and to pay a fine of Rs.30,000/-, in default to undergo simple imprisonment for three months. The fine, if realised, shall be paid to the complainant as compensation as provided CRL. R.P. 3012 of 2003 5 under sec.357(1) Cr.P.C. The accused is also at liberty to pay the amo nt direct to the complainant and produce the receipt before the ower court. His bail bonds are cancelled. The accused shall surre der before the trial court on or before 30.12.2009 to receive the sentence. Two months time is granted to pay the fine. Counsel f the accused submits that half of the fine amount is already deposited fore the lower court. The complainant is entitled to withdraw th t amount. P.Q. BARKATH ALI, JUDGE CRL.M.A.12210/2003 Dismissed. 4.12.2009. P.Q. BARKATH ALI, JUDGE mt/-