IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 2ND NOVEMBER 2009 / 11TH KARTHIKA 1931 Crl.Rev.Pet.No. 16 of 2001(B) ----------------------------------------- CRL.A.NO.394/1999 OF ADDL.SESSIONS COURT-II, KOZHIKODE, CC.NO.3/1998 OF JUDL.MAGISTRATE OF FIRST CLASS, VADAKARA. .................... REV.PETITIONER/APPELLANT/ACCUSED: ------------------------------------------------------------ PADUKUNNATH RAJAN, S/O. KANNAN, RAJI NIVAS, NEAR SWAMI MADAM, (P.O), RAYARANGOTH. BY ADV. MR.C.VATHSALAN. RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: ----------------------------------------------------------------------------------- 1. JITHESH.M.K., S/O. SATHEESAN KULANGARATH HOUSE, V.O. ROAD, (P.O), VADAKARA, KOZHIKODE DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. MR.R.PARTHASARATHY, R2 BY PUBLIC PROSECUTOR MR. C.M. KAMMAPPU. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/11/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.R.P. NO. 16/2001-B: ORDER ON CRL.M.P. NO. 48/2001 IN CRL.R.P. NO. 16/2001 DISMISSED 02/11/2009. SD/- P.Q.BARKATH ALI, JUDGE. //TRUE COPY// P.S. TO JUDGE. Prv. P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 16 of 2001 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 2nd day of November, 2009 O R D E R Revision petitioner is the accused in C.C.No.3 of 1998 of the Judicial Magistrate of the First Class, Vadakara and the appellant in Crl.A.No. 394 of 1999 on the file of the Sessions Court, Kozhikode. He was convicted under section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for three months by the trial court, which was confirmed in appeal by the lower appellate court. 2. The case of the prosecution, as testified by the complainant as PW1 before the trial court and as detailed in the complaint, is that the accused borrowed Rs.25,000/- from him and to discharge that liability, the accused issued cheque Ext.P1 dated November 10, 1997, drawn on the Vadakara branch of Nedungadi Bank, which when presented for collection was dishonoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of notice Ext.P3 dated November 28, 1997, the accused did not re-pay the amount, which is an offence punishable Crl.R.P. 16/01 2 under section 138 of the Negotiable Instruments Act. 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. PWs.1 and 2 were examined and Exts.P1 to P6 were marked on the side of the complainant. When the accused was questioned under section 313 Cr.P.C. by the learned Magistrate, he denied the entire transaction. No defence evidence was adduced. 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 afore said, which was confirmed in appeal. The accused has come up in revision challenging his conviction and sentence. 4. The following points arise for consideration :- 1) Whether the conviction of the revision petitioner by the trial court under section 138 of the Negotiable Instruments Act, which was confirmed in appeal by the lower appellate court, can be sustained? 2) Whether the sentence imposed against the revision petitioner is excessive or unduly harsh? 5. The de facto complainant was examined as PW1 and Exts.P1 to P6 were marked before the trial court. PW2 is the Manger of the bank. PW1 Crl.R.P. 16/01 3 testified in terms of the complaint. I have gone through the evidence of PW1. Nothing was brought out in cross-examination to discredit his evidence. Further, his evidence is supported by Exts.P1 to P6 and PW2 the Manager of the bank. Therefore, I hold that the trial court as well as the lower appellate court is justified in believing the evidence of PW1. 6. The case of the accused was that he was having transaction with the father of the complainant and that signed blank cheque Ext.P1 was issued to him, which has been misused by the complainant to create Ext.P1. There is no substance in the above contention. He did not adduce any evidence to prove his case. Since he has admitted the execution of cheque Ext.P1, presumption under sections 118 and 139 of the Negotiable Instruments Act is available to the complainant. No evidence was adduced by him to rebut the above presumption. For all these reasons, accepting the evidence of the complainant, I uphold the conviction of the revision petitioner under section 138 of the Negotiable Instruments Act, rendered by the trial court, which was confirmed in appeal by the lower appellate court. 7. As regards the sentence, the trial court has imposed a sentence of simple imprisonment for three months, which was confirmed in appeal. The transaction is of the year 1997. Taking into consideration all these aspects, I feel that sentence of imprisonment till the rising of court and fine of Crl.R.P. 16/01 4 Rs.25,000/-, in default to undergo simple imprisonment for two months would meet the ends of justice 8. In the result, the revision petition is allowed in part. The conviction of the revision petitioner under section 138 of the Negotiable Instruments Act, rendered by the trial court, which was confirmed in appeal, is upheld. The sentence imposed on the revision petitioner is modified to the effect that he is sentenced to undergo imprisonment till the rising of the court and to pay fine of Rs.25,000/-, in default to undergo simple imprisonment for two months. The fine amount, if realized, shall be paid to the complainant as compensation as provided under section 357(1) of the Cr.P.C. His bail bonds are cancelled. Three months’ time is granted for payment of the fine. The revision petitioner shall surrender before the trial court on or before December 15, 2009 to receive the sentence. P.Q.BARKATH ALI, JUDGE. mn. Crl.R.P. 16/01 5 P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 16 of 2001 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= O R D E R 2-11-2009