IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 25TH SEPTEMBER 2009 / 3RD ASWINA 1931 Crl.Rev.Pet.No. 2785 of 2003(D) ------------------------------- CRA.456/2002 of SESSIONS COURT, KOTTAYAM CC.49/2000 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- C.J. ABRAHAM, PROPRIETOR, SHOLY TYRES NELLIPPALLY POST, PUNALUR. BY ADV. SRI.P.KURUVILLA JACOB RESPONDENT(S): RESPONDENTS/COMLPLAINANT & STATE: ------------------------------------------------ 1. V.C. MATHEW, S/O. V.P. CHANDY, VADAMATTATHIL HOUSE, THIRUVANCHOOR POST, KOTTAYAM. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.C.P.MOHAMMED NIAS FOR R1 PUBLIC PROSECUTOR SMT.REKHA C. NAIR FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.P. No. 11254 of 2003 in Crl.R.P. No. 2785 of 2003 Dismissed. 25-9-2009 Sd/- P.Q.Barkath Ali, Judge. P.Q. BARKATH ALI, JJ. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 2785 of 2003 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 25th September, 2009 O R D E R The revision petitioner is the accused in C.C.No.49 of 2000 of Chief Judicial Magistrate Court, Kottayam and the appellant in Crl.A.No.456 of 2002 of Sessions Court, Kottayam. He was convicted for the offence punishable under sec.138 of the Negotiable Instruments Act and sentenced to pay fine of Rs.26,000/- and in default to undergo simple imprisonment for three months. It is also ordered that out of the fine amount, if realized, Rs.25,000/- shall be paid to the complainant as compensation. On appeal by the accused, the lower appellate court confirmed the conviction and sentence. The accused has come up in revision. 2. The case of the 1st respondent/complainant, as testified by PW1 and as detailed in the complaint before the court below, was that to discharge the liability in a business transaction between himself and the revision petitioner/accused, the revision petitioner issued Ext.P1 cheque dated 12-11-1999 for an amount of Rs.23,900/-, which, when presented for encashment, was returned dishonoured for want of sufficiency of funds in the account of the revision petitioner in the bank and that in spite of notice Ext.P3, the revision petitioner did not repay the amount, which is an offence punishable under section 138 of the Negotiable Instruments Act. 3. The trial court on receipt of the complaint, recorded the Crl.R.P. 2785/03 2 sworn statement of PW1 and took cognizance of the case. The revision petitioner before the trial court pleaded not guilty to the charge under section 138 of the Negotiable Instruments Act. The complainant/1st respondent was examined as PW1 and Exts.P1 to P6 were marked on his side. When the revision petitioner was questioned under section 313 Cr.P.C., he denied the incriminating circumstances. He contended that for the tread rubber supplied by the complainant to him, sales-tax and central excise duty has to be paid, and that since the complainant did not issue the bill in spite of repeated demands, he was not able to pay the amount. The trial court, on an appreciation of the evidence, found the revision petitioner 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. The accused has come up in revision challenging his conviction and sentence. 4. The following points arise for consideration in this revision :- 1) Whether the conviction of the revision petitioner under section 138 of the Negotiable Instruments Act by the trial court, which is confirmed in appeal by the appellate court, can be sustained? 2) Whether the sentence imposed against the revision petitioner is excessive? 5. Learned counsel for the revision petitioner arguing the appeal submitted that accused purchased tread rubber from the complainant for which the complainant promised to give the bill, that Crl.R.P. 2785/03 3 believing that he issued Ext.P1 cheque as security, that complainant did not issue the bill as promised and that therefore, the accused was not able to use the tread rubber and that therefore, the accused is not liable to pay the amount covered by the cheque. The trial court as well as the lower appellate court considered the above contention of the revision petitioner in detail and found that even if the above contention of the accused is accepted, that does not absolve him from the liability to pay the amount covered by Ext.P1. I find no reason to disagree with the said finding. 6. I have gone through the evidence of PW1. He has testified in terms of the complaint. The defence counsel was not able to shake his evidence in cross examination. No serious discrepancies were also brought out in cross examination. Further, his evidence is supported by Exts. P1 to P5. That apart, issuance of the cheque - Ext.P1 is admitted by PW1. That being so, the presumptions envisaged under Section 118 and 139 of the Negotiable Instruments Act is available to the complainant. The acused did not adduce any evidence to rebut the above presumption. Thus the evidence of PW1 coupled with Exts.P1 to P6 prove beyond doubt that the cheque Ext.P1 was issued by the revision petitioner 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 inspite of the notice Ext.P3 the Crl.R.P. 2785/03 4 accused did not repay the amount, which is an offence punishable under Section 138 of the Negotiable Instruments Act. No other point is argued before me. Therefore, I am inclined to confirm the conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act. 7. As regards the sentence, the trial court has imposed a fine of Rs.26,000/- and in default to undergo simple imprisonment of three months. Out of the fine amount, Rs.25,000/- was ordered to be paid to the complainant as compensation. The lower appellate court confirmed the said sentence. The transaction was of the year 1999. Therefore, I find no reason to interfere with the sentence imposed by the trial court, which is confirmed in appeal. In the result, I find no merit in the revision petition and the same is hereby dismissed. 8. The learned counsel for the revision petitioner submits that the revision petitioner has already deposited half of the fine amount before the trial court. The 1st respondent/complainant is permitted to withdraw that amount. Two months' time is granted to the revision petitioner to pay the balance amount. P.Q. BARKATH ALI, JUDGE mn