IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 19TH OCTOBER 2010 / 27TH ASWINA 1932 Crl.Rev.Pet.No. 622 of 2004(C) ------------------------------ CRA.464/2001 of ADDL.SESSIONS COURT, KOZHIKODE CC.142/1999 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOZHIKODE .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- K.SHYLENDRA NATH, S/O. KUNHIRAMAN, MANAGING PARTNER, ASSOCIATED BUILDERS, 4/1669, K.J.S. COMPLEX, RED CROSS ROAD, KOZHIKODE. BY ADV. SMT.V.P.SEEMANDINI, SENIOR ADVOCATE SRI.P.S.DIVAKARAN SRI.T.R.RAJESH RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE --------------------------------------- 1. SINCERE WOOD INDUSTRIES, KARANTHUR P.O., KOZHIKODE, REP. BY ITS PARTNER AND POWER OF ATTORNEY HOLDER, K.KHADERKUTTY, S/O.K.KUNHAYI,PARTNER,M/S. SINCERE WOOD INDUSTRIES KARANTHUR P.O. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM ADV. SRI.C.P.MOHAMMED NIAS FOR R1 PUBLIC PROSECUTOR SRI.A.J.VARGHESE THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.A.NO.2457/2004 IN CRL.R.P.NO.622 OF 2004 DISMISSED. 19-10-2010 Sd/-, P.Q.BARKATH ALI, JUDGE P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.622 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of October, 2010 ORDER Challenge in this revision by the accused in C.C.No.142/1999 on the file of Judicial Magistrate of First Class I, Kozhikode and appellant in Crl.Appeal No.464/2001 on the file of Sessions Court, Kozhikode, is to the judgment of the learned Magistrate dated July 27, 2001 convicting him under Section 138 of Negotiable Instruments Act and sentencing him to undergo simple imprisonment for six months which is confirmed in appeal by the lower appellate court by judgment dated November 27, 2003. 2. The case of the revision first respondent/complainant firm as testified by the power of attorney holder PW1 and as stated in the complaint in brief is this : Complainant is M/s. Sincere Wood Industries, Karanthur represented by its power of attorney holder PW1. Accused purchased sized hard wood timber worth Rs. 87, 188/- from the complainant on March 25, 1998 and towards the value of the same, accused issued the Crl.R.P.No.622/2004 2 cheque Ext.P3 dated March 28, 1998 for the said amount drawn on the Cherootty road branch of Vysya Bank which when presented for collection was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank. In spite of the notice Ext.P6 dated April 13, 1998, the accused did not repay the amount. Thus the complainant has 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 PW1, the power of attorney holder of the complainant firm and took cognizance of the offence. On appearance before the trial court, the accused pleaded not guilty to a charge under Section 138 of Negotiable Instruments Act. PW1 was examined and Exts.P1 to P10 were marked on the side of the complainant. When questioned under Section 313 Cr.P.C. by the learned Magistrate, the accused denied the entire transaction and submitted that in connection with another transaction, the complainant obtained the cheque from the accused and misusing that cheque, the complainant has filed this false complaint against him. On the side of the accused, DW1 was examined. 4. On an appreciation of evidence, the learned Magistrate Crl.R.P.No.622/2004 3 found the accused guilty of the offence punishable under Section 138 of Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid which is confirmed in appeal by the lower appellate court. The accused has now come up in revision challenging his conviction and sentence. 5. Heard the counsel for the revision petitioner/accused and 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. PW1, the power of attorney holder of the complainant firm testified in terms of the complaint. Nothing was brought out during his cross examination to discredit his evidence. His evidence is supported by Exts.P1 to P10. 8. The specific case of the accused was that he did not purchase any timber from the complainant, that one Balan who is the husband of one Jayasree who is a partner of the complainant firm in Crl.R.P.No.622/2004 4 connection with the sale of X-ray clinic of accused on May 20, 1994 obtained a blank cheque from the accused which was misused by the complainant and foisted this case against him. There is no substance in the above contention. There is no reliable evidence to prove the case of the accused. The evidence of DW1 does not in any way help the accused to prove his case. That apart, as the accused has admitted the issuance of cheque Ext.P3, presumption under Section 118 and 139 of Negotiable Instruments Act is available to the complainant. No satisfactory evidence was adduced by the accused to rebut the above presumption. 9. For all these reasons, I am of the view that the learned Magistrate as well as the leaned Sessions Judge are perfectly justified in accepting the evidence of the complainant and holding that the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. The conviction of the revision petitioner under Section 138 of Negotiable Instruments Act is therefore confirmed. Point No.2 10. As regards the sentence, the trial court imposed a sentence of simple imprisonment for six months which is confirmed in appeal. Crl.R.P.No.622/2004 5 Counsel for the accused submitted that accused is prepared to pay the amount due to the complainant. Under these circumstances a lenient view is taken. I feel that an imprisonment till the rising of court and a compensation of Rs. 90,000/- would meet the ends of justice. 11. In the result, the revision petition is allowed in part. Conviction of the revision petitioner under Section 138 of Negotiable Instruments Act is confirmed. Sentence is modified to the effect that the revision petitioner is sentenced to undergo imprisonment till the rising of court and to pay a compensation of Rs. 90,000/- to the complainant, in default to undergo simple imprisonment for three months. The revision petitioner shall surrender before the trial court on or before 15/11/2010 to suffer the sentence. Time is granted till 15/11/2010 for payment of compensation. The said amount shall be adjusted towards the amount due to the complainant under the decree obtained by him in O.S.No.153/2001 of Sub Court, Kozhikode which is confirmed in appeal in A.S.No.292/204 of District Court, Kozhikode. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.622/2004 6