IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 7TH DECEMBER 2009 / 16TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 1137 of 2002() ------------------------------ CRA.106/1996 of SESSIONS COURT, MANJERI CC.235/1995 of JUDL. MAGISTRATE OF FIRST CLASS, MALAPPURAM .................... REVISION PETITIONER/APPELLANT/ACCUSED. ----------------------------------------------------------- P.K.KRISHNAN, QUIANA DRESSESS, PAZHAYANGADI, KONDOTTY, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENTS / RESPONDENTS/STATE AND COMPLAINANT. ------------------------------------------------ 1. THE STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERANAKULAM, KOCHI-31. 2. M.P.DAMODHARAN, S/O.PADMANABHAN, NECHIKUTTIYIL HOUSE, THURAKKAL, KONDOTTY, MALAPPURAM DISTRICT. R1 BY PUBLIC PROSECUTOR SMT. REKHA C. NAIR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P. 1137 of 2002 ------------------------------------------------------ Dated: DECEMBER 7, 2009 ORDER The revision petitioner is the accused in C.C. No.235/1995 of Judicial First Class Magistrate Court, Malappuram, and the appellant in Crl.A.106/1996 of Sessions Court, Manjeri. He was convicted under sec.138 of the Negotiable Instruments Act and was sentenced to undergo simple imprisonment for two months and to pay a fine of Rs.10,000/-, in default to undergo simple imprisonment for three months. Out of the fine amount, if realised, Rs.8000/- was ordered to be given to the complainant as compensation. On appeal his conviction was confirmed, but the sentence was modified to the effect that he was sentenced to undergo simple imprisonment for one month and to pay a fine of Rs.5000/-, in default to undergo simple imprisonment for one month. Now the accused has come up in revision challenging his conviction and sentence. 2. The case of the complainant as testified by him as PW.1 before the trial court and as detailed in the complaint is that the accused borrowed Rs.10,000/- from the complainant and to discharge that liability he issued the cheque Ext.P1 dated May 13, 1995 drawn on the Kondotty Service Co-operative Bank Ltd., Kondotty , which, CRL. R.P. 1137 of 2002 2 when presented for collection, was returned dishonoured for want of sufficiency of funds in the account of the revision petitioner in the bank and that in spite of the notice Ext.P3 dated May 23, 1995, the accused did not repay the amount, which is an offence punishable under sec.138 of the Negotiable Instruments Act. 3. On receipt of the complaint the trial court recorded the sworn statement of the complainant/PW.1 and took cognizance of the case. The accused on appearance before the lower court pleaded not guilty to the charge under sec.138 of the Negotiable Instruments Act. PW.1 was examined and Exts.P1 to P5 were marked on the side of the complainant. When questioned under sec.313 Cr.P.C. by the trial court, the accused submitted that he borrowed Rs.2000/- from the complainant and as security he issued the cheque Ext.P1 which was misused by the complainant and created Ext.P1. DW.2 was examined on the side of the accused. 4. The trial court on an appreciation of evidence found the revision petitioner guilty of the offence punishable under sec.138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid. On appeal his conviction was confirmed, but the sentence was modified as mentioned above. The accused has now come up in revision challenging his conviction and sentence. CRL. R.P. 1137 of 2002 3 5. Heard the counsel for the revision petitioner. The revision 2nd respondent, though received notice, remained absent. 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? Point No.I 7. The complainant was examined as PW.1 and he produced Exts.P1 to P5. No serious discrepancies were pointed out in his cross-examination to discredit his evidence. His evidence is supported by Exts.P1 to P5. 8. The case of the accused when questioned under sec.313 Cr.P.C. by the trial court, was that he borrowed only Rs.2000/- from the complainant for which he issued a signed blank cheque which was misused by the complainant and created Ext.P1. In an attempt to prove his case, he examined DW.1 who would say that he had seen the accused giving a blank cheque and a signed stamp paper to the complainant. Both the courts below have rejected the evidence of DW.2. On going through the evidence of DW.1, I find no reason to come to a different conclusion. CRL. R.P. 1137 of 2002 4 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 PW.1 and rejecting the evidence of DW.1 and coming to the conclusion that the accused has issued the cheque Ext.P1 to discharge his liability towards the complainant which, when presented for collection, was returned dishonoured for want of sufficiency of funds in the account of the revision petitioner in the bank and that in spite of the notice Ext.P3, the revision petitioner did not repay the amount which is an offence punishable under sec.138 of the Negotiable Instruments Act. Therefore I confirm the conviction of the revision petitioner under sec.138 of the Negotiable Instruments Act. Point No.II 10. As regards the sentence, the trial court imposed a sentence of simple imprisonment for two months and a fine of Rs.10,000/-. The lower appellate court modified the sentence to simple imprisonment for one month and a fine of Rs.5000/-. Learned counsel for the revision petitioner submits that the entire amount has been paid to the complainant and produced the receipt also. Therefore I feel that a sentence of simple imprisonment till the rising of court and a fine of Rs.10,000/- would meet the ends of justice. In the result, the revision petition is allowed in part. The CRL. R.P. 1137 of 2002 5 conviction of the revision petitioner under sec.138 of the Negotiable Instruments Act is confirmed. The sentence is modified to the effect that he is sentenced simple imprisonment till the rising of court and a fine of Rs.10,000/-, in default to undergo simple imprisonment for one month. His bail bonds are cancelled. One month time is granted for payment of fine. The accused/revision petitioner shall surrender before the trial court on 30.12.2009 to receive the sentence. The fine amount, if realised, shall be paid to PW.1 as compensation as provided under sec.357(1) of Cr.P.C. P.Q. BARKATH ALI, JUDGE CRL.M.P.6065/2002 Dismissed. 7.12.2009. P.Q. BARKATH ALI, JUDGE mt/-