IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 1ST JULY 2011 / 10TH ASHADHA 1933 Crl.Rev.Pet.No. 345 of 2002() ----------------------------- CRA.107/1999 of SESSIONS COURT, THODUPUZHA ST.594/1996 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KATTAPPANA .................... REVN. PETITIONER/ APPELLANT/ACCUSED -------------------------------------- A.SREEDHARAN NAIR, KALLUMKAL HOUSE, CHANNANIKKADU KARA, KOTTAYAM DISTRICT. BY ADV. SRI.P.RAVINDRA BABU SRI.SURIN GEORGE IPE RESPONDENTS/RESPONDENTS/COMPLAINANT -------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. VINOD KUMAR K.C., KALLAMPALLIYIL HOUSE, VAZHAVARA KARA, KALAKOONTHAL VILLAGE, IDUKKI DISTRICT. ADV. SRI.T.V.PRABHAKARAN FOR R2 PUBLIC PROSECUTOR SRI.JAIBY PAUL SRI.T.RAVIKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.P.NO.2438/2002 IN CRL.R.P.NO.345 OF 2002 DISMISSED 1-7-2011 Sd/-, P.Q.BARKATH ALI, JUDGE /True Copy/ PA to Judge P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.345 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of July, 2011 ORDER Revision petitioner is the accused in S.T.No.594/1996 on the file of Judicial First Class Magistrate Court, Kattappana and appellant in Crl.Appeal No.107/1999 of Sessions Court, Thodupuzha. The learned Magistrate by judgment dated September 8, 1999 convicted him under Section 138 of Negotiable Instruments Act and sentenced him to undergo simple imprisonment for one year and to pay a fine of Rs.50,000/- in default to undergo simple imprisonment for three months. Out of the fine amount, Rs.45,000/- was ordered to be paid to the complainant. On appeal by the accused, the learned Sessions Judge by judgment dated January 18, 2002 confirmed his conviction, but modified by the sentence to simple imprisonment for four months and to pay a compensation of Rs.40,000/- to the complainant. The accused has now come up in revision challenging his conviction and sentence. 2. The case of the revision second respondent/complainant as Crl.R.P.No.345/2002 2 testified by him as PW1 before the trial court and as detailed in the complaint was this: On September 15, 1995, the accused received Rs.40,00/- from the complainant promising to secure him a job abroad within two months. As the accused was not able to provide the complainant any job abroad as promised within two months, the complainant demanded back the amount. At that time, the accused issued the cheque Ext.P1 on 22/11/1995 drawn on the Panachikavu branch of Regional Service Co-operative Bank which when presented for collection was returned dishounoured for want of sufficiency of funds in the account of the accused in the bank. Though the complainant issued notice Ext.P4 on April 6, 1996, it was returned unserved. The accused has not repaid the amount so far. Therefore, the complainant filed the complaint under Section 138 of the Negotiable Instruments Act before the lower court. 3. On receipt of the complaint, the learned Magistrate recorded the sworn statement of the 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 Negotiable Crl.R.P.No.345/2002 3 Instruments Act. PWs 1 and 2 were examined and Exts.P1 to P5 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the accused submitted that the cheque Ext.P1 was issued by him under threat of police and that the same is not supported by any consideration. No defence evidence was adduced. 4. The learned Magistrate on an appreciation of evidence found the revision petitioner guilty of the offence punishable under Section 138 of Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid. On appeal by the accused, the lower appellate court confirmed his conviction, but modified the sentence as mentioned above. The accused has now come up in revision challenging his conviction and sentence. 5. Heard the counsel for the revision petitioner/accused and the counsel for the revision second 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 ? Crl.R.P.No.345/2002 4 Point No.1 7. 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. Further his evidence is supported by Exts.P1 to P5 and the evidence of PW2, the Bank Manager. 8. The specific case of the accused as suggested during cross examination of PW1 and as stated by him when questioned under Section 313 Cr.P.C. was that Chingavanam police at the instance of PW1 threatened him and got executed Ext.P1 and that the same is not supported by any consideration. No evidence was adduced by him to prove his case. Therefore, in my view, both the courts below are justified in rejecting the above case of the accused. Further, as the execution of cheque Ext.P1 was admitted by the accused, presumption as envisaged under Section 118 and 139 of Negotiable Instruments Act is available to the complainant. No reliable evidence was adduced by the accused to rebut the above presumption. 9. For all these reasons, I am of the view that the trial court as Crl.R.P.No.345/2002 5 well as the lower appellate court are perfectly justified in accepting the evidence of PW1 and finding that the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. Therefore I confirm the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act. Point No.2 10. As regards the sentence, the trial court imposed a sentence of simple imprisonment for one year and to pay a fine of Rs.50,000/, in default, to undergo simple imprisonment for three months. Out of the fine amount, Rs.45,000/- was ordered to be paid as compensation to PW1, the complaint. The lower appellate court confirmed his conviction, but modified the sentence to simple imprisonment for four months and to pay a compensation of Rs.40,000/-. The transaction is of the year 1995. The accused received the amount from the complainant promising to secure a job for him abroad. In the light of the principles laid down in Kaushalya Devi Mass and v. Roopkishore Khore ( 2011(4) Supreme Court Cases 593), I feel that a sentence of imprisonment till the rising of court and a compensation of Rs.75,000/- Crl.R.P.No.345/2002 6 with default sentence would meet the ends of justice. 11. In the result, revision petition is allowed in part. The conviction of the revision petitioner under Section 138 of Negotiable Instruments Act is confirmed. The 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. 75,000/- to the complainant, in default to undergo simple imprisonment for two months. Two months' time is granted for payment of compensation. The revision petitioner shall surrender before the trial court on or before July 20, 2011 to receive the sentence. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.345/2002 7