IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 31ST JANUARY 2011 / 11TH MAGHA 1932 Crl.Rev.Pet.No. 2901 of 2003() ------------------------------ CRA.309/2000 of ADDL.SESSIONS COURT (ADHOC), ALAPPUZHA ST.1868/1997 of JUDL.MAGISTRATE OF FIRST CLASS COURT -I, ALAPPUZHA .................... REVN. PETITIONER/APPELLANT/ACCUSED --------------------- A.C.THOMAS, S/O CHACKO, AGED 76 YEARS ANNAVELIYIL, MARUTHORVATTOM CHERTHALA TALUK, THANNERKUKKAM VILLAGE BY ADV. SRI.TOM JOSE SMT.GEETHA JOB(OZHUKAYIL) RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE --------------- 1. THOMAS JAMES, AGED 53 YEARS, KATTUNKAL VEEDU, CANAL WARD, ALAPPUZHA 2. STATE OF KEARLA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ADV. SRI.J.OM PRAKASH FOR R1 PUBLIC PROSECUTOR SRI.RAMANAD K.B. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 31/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.A.NO.11737/2003 IN CRL.R.P.No.2901/2003 DISMISSED 31-01-2011 Sd/-, P.Q.BARKATH ALI, JUDGE /True Copy/ PA to Judge P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.2901 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 31st day of January, 2011 ORDER Revision petitioner is the accused in S.T.No.1868/1997 on the file of Judicial First Class Magistrate Court I, Alappuzha and appellant in Crl.Appeal No.309/2000 of Addl. Sessions Court, Fast Track ( Adhoc -I), Alappuzha. The learned Magistrate by judgment dated November 29, 2000 convicted him under Section 138 of Negotiable Instruments Act and sentenced him to undergo simple imprisonment for three months which is confirmed in appeal by the learned Sessions Judge by judgment dated April 2, 2003. The accused has now come up in revision challenging his conviction and sentence. 2. The case of the first respondent/complainant as testified by him as PW1 before the trial court and as detailed in the complaint was that the accused borrowed Rs. 70,000/- from him and to discharge that liability, he issued the cheque Ext.P1 dated June 13, 1997 drawn on the Cherthala branch of Union Bank of India, which when presented for Crl.R.P.No.2901/2003 2 collection was returned dishounoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of notice Ext.P4 dated June 28, 1997, the accused did not repay the amount which is an offence punishable under Section 138 of Negotiable Instruments Act. 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 Instruments Act. PW 1 was examined and Exts.P1 to P6 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the accused denied the entire transaction. DW1 was examined on the side of the accused. 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 which is confirmed in appeal. The accused has now come up in revision challenging his conviction and Crl.R.P.No.2901/2003 3 sentence. 5. Heard the counsel for the revision petitioner/accused and the counsel for the revision first 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 ? 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 P6. 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 he borrowed Rs. 10,000/- from one Ms.Theralin for which he issued a signed blank cheque to her which was misused by the complainant and created Ext.P1. In an attempt to Crl.R.P.No.2901/2003 4 prove the said transaction, he examined DW1. Both the courts below have disbelieved the evidence of DW1. I find no reason to come to a different conclusion. Further, as the issuance of the 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 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 three months which is confirmed in appeal. Taking into consideration the fact that the transaction is of the year 1997, I feel that a sentence of imprisonment till the rising of court and Crl.R.P.No.2901/2003 5 a direction to pay a compensation of Rs.70,000/- with default sentence would meet the ends of justice. 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 imposed by the trial court which is confirmed by the lower appellate Court is modified to the effect that he is sentenced to undergo imprisonment till the rising of court and to pay a compensation of Rs. 70,000/- to the complainant, in default to undergo simple imprisonment for three months. Rs.35,000/- deposited by the accused before the trial court shall be adjusted towards the compensation amount ordered to be paid. He shall pay the balance amount of compensation within three months from this date. The revision petitioner shall surrender before the trial court on or before February 28, 2011 to receive the sentence. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.2901/2003 6