IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 4TH APRIL 2011 / 14TH CHAITHRA 1933 Crl.Rev.Pet.No. 3269 of 2004() --------------------------------------- CRA.223/2001 of ADDL. SESSIONS COURT, (ADHOC), PALAKKAD ST.3237/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT, PATTAMBI .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------------------- O.T.ABU S/O. MAMMIKUTTY, ORAVUTHODI VEEDU, VILAYUR AMSOM, DESOM, OTTAPPALAM TALUK. BY ADV. SRI.D.ANIL KUMAR RESPONDENT(S): RESPONDENT/COMPLAINANT & STATE ------------------------------------------------------------------------------------- 1. P.T.KUNHALIKUTTY S/O. VEERANKUTTY, PARAKATTUTHODI VEEDU, MANNANGODU DESOM, PULASSERY AMSOM, OTTAPALAM TALUK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. JAIBY PAUL R1 BY ADVS. SMT.PREETHY KARUNAKARAN SRI.R.RAJESH KORMATH SMT.MEENA.A. SMT.M.R.MINI SRI.JAYKAR.K.S. SRI.RAHUL VARMA SRI.V.S.ROBIN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SMT Crl.Rev.Pet.No. 3269 of 2004() ---------------------------------------------- ORDER ON CRL.M.A. NO. 14896 OF 2004 IN CRL. REV. PET. NO. 3269 OF 2004 ----------------------------------- DISMISSED. Sd/- 04.04.2011 P.Q.BARKATH ALI, JUDGE. TRUE COPY PA TO JUDGE smt P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - Crl.R.P. No. 3269 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th April, 2011 O R D E R Revision petitioner is the accused in ST case No.3237 of 1998 on the files of Judicial First Class Magistrate Court, Pattambi and appellant in Crl.A.No.223 of 2001 on the file of Additional Sessions Judge /First Track Court-I Palakkad. He was convicted under Sec.138 of the Negotiable Instruments Act and was sentenced to undergo simple imprisonment for three months and to pay a compensation of Rs.1,30,000/- (Rupees one lakh thirty thousand only) to the complainant by the Trial Court by judgment dated 26th May 2001. On appeal by the accused, the lower appellate court by judgment dated 8th October 2004 confirmed his conviction, but modified the sentence to simple imprisonment for fifteen days. The direction of the Trial Court to pay compensation was maintained. The accused has now come up in revision challenging his conviction and sentence. 2. The case of the complainant, as testified by him as PW1 before the trial court and as detailed in the complaint in brief in this. The accused issued two cheques Ext.P1 series for Crl.R.P. No. 3269 of 2004 :2: Rs.65,000/- (Rupees sixty five thousand only) and Rs.60,000/- (Rupees sixty thousand only) respectively on 29th June 1998, in favour of the complainant towards the amount due to the complainant from him. The accused has also executed an agreement Ext.P6 dated 15th January 1998 with the complainant. When the cheques were presented for encashment, it was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of notice Ext.P4, dated 30th June 1998 the accused did not re-pay the amount. Therefore he filed the complaint before the trial court. 3. On receipt of the complaint, the learned Magistrate recorded the sworn statement of the complainant and took cognizance of the offence. The accused on appearance before the trial court, pleaded not guilty to the charge under section 138 of the Negotiable Instruments Act. PW1 was examined and Exts.P1 to P7 were marked on the side of the complainant. When the accused was questioned under section 313 Cr.P.C. by the learned Magistrate, the accused submitted that cheques were issued as a security in connection with the another transaction. No defence evidence was accused. Crl.R.P. No. 3269 of 2004 :3: 4. Heard the learned counsel for the revision petitioner/accused and the learned counsel for the complainant. 5. The following points arise for consideration :- 1) Whether the conviction of the revision petitioner under Sec. 138 of the Negotiable Instruments Act rendered by the trial court which is confirmed by the lower appellate court can be sustained? 2) Whether the sentence imposed is excessive or unduly harsh? 6. The complainant as PW1 testified in a convincing manner before the trial court regarding the transaction. Nothing was brought out during his cross-examination to disbelieve his evidence. However, his evidence is supported by Exts.P1 to P7. 7. The specific case of the accused was that Ext.P1 series cheques were issued to the complainant as security in connection with another transaction with another person in which the complainant acted as a mediator. But no evidence was adduced by the accused to prove his case. Therefore I found no merit in the above contention of the accused. That part, as the accused has admitted the execution of Ext.P1 cheque presumption as envisaged under Sec. 118 and 139 of Negotiable Instruments Act is available to the complainant. The accused has not adduced any Crl.R.P. No. 3269 of 2004 :4: satisfactory evidence to rebut the above presumption. 8. For all of these reasons, I am inclined to hold that the trial court as well as the lower appellate court are perfectly justified in holding that the accused has committed the offence punishable under sec.138 of Negotiable Instruments Act. Therefore, I confirm the conviction of the revision petitioner / accused under sec.138 of Negotiable Instruments Act. 9. As regards the sentence the trial court imposed a sentence of three months simple imprisonment which is reduced by the lower appellate court to simple imprisonment for a period of one month. He was also directed to pay a compensation of Rs.1,30,000/- (Rupees one lakh thirty thousand only). The transaction is of the year 1998. Therefore a lenient view is taken and I feel that a sentence of imprisonment till the rising of court and a direction to pay compensation with default sentence would meet the ends of justice. In the result the revision petition is allowed in part conviction of the revision petitioner under sec.138 of the Negotiable Instruments Act is confirmed. The sentence is modified to the effect that the revision petitioner is sentenced to Crl.R.P. No. 3269 of 2004 :5: undergo imprisonment till the rising of court and to pay a compensation of Rs.1,30,000/- (Rupees one lakh thirty thousand only) to the complainant in default to undergo simple imprisonment for 3 months. The revision petitioner/accused shall surrender before the trial court on or before 30th April 2011 to suffer the sentence. Three months time is granted for payment of compensation. His bail bonds are cancelled. P.Q.BARKATH ALI, JUDGE. smt