IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 27TH OCTOBER 2009 / 5TH KARTHIKA 1931 Crl.Rev.Pet.No. 1222 of 2003() ----------------------------------------- CRA.834/2001 of I ADDL.SESSIONS COURT, ERNAKULAM CC.955/1999 of ADDL.CHIEF JUDICIAL MAGISTRATE COURT (E & O),ERNAKULAM .................... REVN. PETITIONER/ ACCUSED/APPELLANT ------------------------------------------------------------- N.GOPAKUMAR, JAGO RUBBERS, PEEZHANADU, THIRUVANANTHAPURAM BY ADV. MR.S.M.PREM SMT.K.P.SANTHI RESPONDENTS/COMPLAINANT/RESPONDENTS --------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR. 2. O.M. THOMAS, OONNUKALUMTHATTIYIL, PROPRIETOR, UNITED TRADING AGENCIES, SREE MURUGA BUILDINGS, KALOOR, COCHIN. R1 BY PUBLIC PROSECUTOR MR.C.M. KAMMAPPU. R2 BY ADV. MR.T.MADHU , MR.P.O.THOMAS. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.Rev.Pet.No. 1222 of 2003 ORDER ON CRL.MA. NO.4856/2003 IN CRRP NO.1222/2003 DISMISSED 27/10/2009. SD/- P.Q.BARKATH ALI, JUDGE //TRUE COPY// P.S. TO JUDGE rs. P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.1222 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of October, 2009 ORDER The revision petitioner is the accused in C.C.No.955/1999 on the file of Additional Judicial Magistrate ( Economic Offences), Ernakulam and appellant in Crl.Appeal No.834/2001 of first Additional Sessions Court, Ernakulam. He was convicted under Section 138 of the Negotiable Instruments Act and was sentenced to undergo simple imprisonment for three months and to pay a fine of Rs. 47,000/- , in default, to undergo simple imprisonment for one month. Out of the fine amount, Rs. 45,000/- was ordered to be paid to the complainant as compensation. On appeal, the conviction of the accused was confirmed. But the substantive sentence was reduced to simple imprisonment for one month. 2. The case of the complainant as testified by him as PW1 before the trial court and as detailed in the complaint in brief is this : The complainant was conducting the business of rubber under the Crl.R.P..No.1222/03 Page numbers name and style of M/s. Unity Trading Agencies, Kaloor, Kochi . The accused used to purchase goods from the complainant . Towards the value of the goods purchased the accused issued two cheques Exts.P1 and P2 dated June 15, 1997 and June 30, 1997 respectively for Rs. 20090/- each drawn on the State Bank of Travancore Ottasekharamangalam branch , Thiruvanthapuram. When the cheques were presented for collection, those were returned dishonoured with the endorsement 'Exceeds arrangement'. In spite of the notice given Ext.P5 , the accused did not repay the amount. Hence the complainant has filed the complaint before the trial court alleging the offence punishable under Section 138 of the Negotiable Instruments Act. 3. The learned Magistrate on receipt of the complaint, recorded the sworn statement of 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 the Negotiable Instruments Act. PW1 was examined and Exts.P1 to P13 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C. and as DW1, the accused submitted that the Crl.R.P..No.1222/03 Page numbers cheques were issued as security for the goods to be supplied to him and that complainant did not supply the goods and that therefore the cheques were without consideration. 4. The trial court on an appreciation of evidence found the revision petitioner/accused guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid. On appeal, his conviction was confirmed, but the substantive sentence was reduced to simple imprisonment for one month. The accused has now come up in revision challenging his conviction and sentence. 5. The following points arise for consideration : 1) Whether the conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act by the trial court which is confirmed in appeal can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? Crl.R.P..No.1222/03 Page numbers Point No.1 6. The complainant as PW1 before the trial court testified in terms of the complaint. I have gone through his evidence. Nothing was brought out during his cross examination to discredit his evidence. His evidence is supported by Exts.P1 to P13. Further the issuance of cheques Exts.P1 and P2 is admitted by the accused. Therefore, presumption available under Sections 118 and 138 of Negotiable Instruments Act is available for the complainant. Accused was not able to rebut the above presumption effectively. 7. The contention of the accused that the cheques were issued only as security for the goods to be supplied is also not proved on the side of the accused. On the other hand, the complainant produced Exts.P10 and P11 invoices and Exts.P12 and P13 way bills to show that they have supplied the goods to the accused. For all these reasons, the trial court as well as the lower appellate court is perfectly justified in accepting the evidence of PW1 and holding that the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. It follows that the conviction of the revision Crl.R.P..No.1222/03 Page numbers petitioner under Section 138 of Negotiable Instruments Act has to be confirmed. Point No.2 8. As regards the sentence, the trial court imposed a sentence of three months which is reduced by the lower appellate court to simple imprisonment for one month. The trial court imposed a fine of Rs. 47,000/- , in default, to undergo simple imprisonment for one month which is confirmed in appeal. Out of the fine amount, Rs. 45,000/- was directed to be paid to the complainant as compensation . The transaction is of the year 1997. Taking into consideration all these aspects, I feel that the substantive sentence can be reduced to imprisonment till the rising of court . The sentence of fine imposed by the trial court which is confirmed in appeal is upheld. The direction to pay Rs. 45,000/- out of the fine amount to the complainant as compensation is also confirmed. In the result, the conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act by the trial court which is confirmed in appeal is upheld. He is sentenced to undergo Crl.R.P..No.1222/03 Page numbers imprisonment till the rising of court. The sentence of fine imposed by the trial court which is confirmed in appeal is upheld. The direction to pay Rs. 45,000/- out of the fine amount to the complainant as compensation is also confirmed. The revision petitioner shall surrender before the trial court on or before 30-11-2009 to receive the sentence. One month's time is granted for payment of fine. P.Q.BARKATH ALI JUDGE sv. Crl.R.P..No.1222/03 Page numbers