IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 21ST JANUARY 2011 / 1ST MAGHA 1932 Crl.Rev.Pet.No. 2398 of 2004(D) ------------------------------- CRA.349/2002 of SESSIONS COURT, ALAPPUZHA CC.129/2001 of JUDL.MAGISTRATE OF FIRST CLASS, AMABALAPUZHA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- SIVADAS, S/O.NANU.P.V., THADATHIL, PUTHENPURAYIL, ALA P.O., CHENGANNUR. BY ADV. SRI.V.V.RAJA SRI.M.T.SURESHKUMAR RESPONDENT(S): COMPLAINANT AND STATE ------------------------------------ 1. PRABHAKARAN, KANDATHIL PARAMBU, PUNNAPPRA, ALAPPUZHA DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.JOHN BRITTO FOR R1 SRI.C.A.RAJEEV FOR R1 PUBLIC PROSECUTOR SRI.MOHAMMED PUZHAKKARA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Crl.R.P. No. 2398 of 2004 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 21st day of January, 2011 O R D E R Challenge in this revision petition by the accused is to the judgment dated November 30, 2002 in C.C.No.129 of 2001 on the file of the Judicial Magistrate of the First Class, Ambalappuzha convicting him under section 138 of the Negotiable Instruments Act and sentencing him to undergo simple imprisonment for six months by the learned Magistrate by judgment dated November 30, 2002, which was confirmed in appeal by the Sessions Court by judgment dated July 7, 2004. Now the accused has come up in revision challenging his conviction and sentence. 2. The case of the complainant/1st respondent, as testified by him as PW1 before the trial court and as stated in the complaint, was that the accused/revision petitioner borrowed Rs.50,000/- from him and to discharge that liability the accused issued Ext.P1 cheque dated July 15, 2000 for the said amount drawn on the Aluva Branch of Federal Bank Ltd. which Crl.R.P. No. 2398/2004 2 when presented for collection was returned dishonoured for want of sufficiency of funds in the account of the revision petitioner/accused in the bank and that in spite of Ext.P4 notice dated January 17, 2001, the accused/revision petitioner did not repay the amount. Therefore, the complainant filed the complaint before the trial court under section 138 of the Negotiable Instruments Act. 3. The learned Magistrate, on receipt of the complaint, 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. The complainant was examined as PW1 and Exts.P1 to P7 were marked on the side of the prosecution. When questioned under section 313 of Cr.P.C. by the learned Magistrate, the accused submitted that he had taken a loan from Federal Bank for which one Vasanthi Vijayasingh, who is none other than the aunt of the complainant, stood as surety, that as security, he issued 6 signed blank cheque leaves to said Vasanthi Vijaysingh and Crl.R.P. No. 2398/2004 3 that the complainant misused one of those cheque leaves and created Ext.P1 cheque. Ext.D1 was marked on the side of the defence. 4. The trial court, on an appreciation of the evidence, found the accused guilty of the offence punishable under section 138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid, which was confirmed in appeal by the Sessions Court. Now the accused has come up in revision challenging his conviction and sentence. 5. Heard learned counsel for the revision petitioner and learned counsel for the 1st respondent . 6. The following points arise for consideration : 1) Whether the conviction of the revision petitioner under section 138 of the Negotiable Instruments Act rendered by the trial court which was confirmed in appeal can be sustained ? 2) Whether the sentence imposed on the revision petitioner/accused is excessive or unduly harsh ? 7. The complainant as PW1 testified in a convincing manner before the trial court regarding the transaction. Crl.R.P. No. 2398/2004 4 Nothing was brought out during cross-examination to discredit his evidence. During the cross-examination he has emphatically denied the suggestion that he has misused any signed blank cheque. Further his evidence is supported by Exts.P1 to P7. 8. The case of the revision petitioner/accused, as stated by him when questioned under section 313 by the learned Magistrate, was that for the loan availed of by him from the Aluva Branch of Federal Bank Ltd. one Vasanthi Vijayasingh stood as surety and as security he issued six blank signed cheques to her, that the complainant obtained one of those cheque from her who is the aunty of the complainant and created Ext.P1. But no evidence was adduced by the accused to prove his case. 9. Learned counsel for the revision petitioner/accused pointed out that the complainant during cross-examination admitted that he has obtained cheque Ext.P1 from Vasanthi Vijayasingh. There is no substance in the above contention. On going through the cross-examination of PW1, it is seen that Crl.R.P. No. 2398/2004 5 there was no such admission made by PW1. He has admitted that Vasanthi Vijayasingh is the aunt of his wife. Further no evidence was adduced by the accused to prove his case that he issued any blank signed cheques to the said Vasanthi Vijayasingh. That being so, the above case put forward by the accused cannot be believed. That apart the accused has admitted issuance of Ext.P1 cheque, presumption envisaged under sections 118 and 138 of the Negotiable Instruments Act is available to the complainant. No reliable evidence was adduced by the accused to rebut the above presumption. For all these reasons, I am of the view that the trial court as well as the appellate court have perfectly justified in accepting the evidence of PW1 and coming to the conclusion that the accused has committed the offence punishable under section 138 of the Negotiable Instruments Act and convicting him thereunder. 10. As regards the sentence, the trial court imposed a sentence of simple imprisonment for six months, which was confirmed in appeal by the learned Sessions Judge. The Crl.R.P. No. 2398/2004 6 transaction is of the year 2000. Therefore, a lenient view is taken and I hold that the sentence of imprisonment till the rising of court and to pay a compensation of Rs.50,000/-would meet the ends of justice. 11. In the result, the revision petition is allowed in part. The conviction of the revision petitioner/accused under section 138 of the Act rendered by the trial court, which was confirmed in appeal is upheld. He is sentenced to undergo till the rising of court and to pay compensation of Rs.50,000/- to the complainant, in default to undergo simple imprisonment for three months. His bail bonds are cancelled. Three months' time is granted for payment of the compensation. He shall surrender before the trial court on or before 28- 2-2011 to suffer the sentence. P.Q.BARKATHALI, JUDGE mn Crl.R.P. No. 2398/2004 7 P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.A.No. 2398 of 2004 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= JUDGMENT 21 st January,2011