IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI SUNDAY, THE 25TH JUNE 2010 / 4TH ASHADHA 1932 Crl.Rev.Pet.No. 417 of 2004(B) ------------------------------ CRA.82/2003 of SESSIONS COURT, MANJERI CC.269/2001 of JUDL. MAGISTRATE OF FIRST CLASS, MALAPPURAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- P.K.RAJAN, AGED 41 YEARS, PUTHOOKKARAN HOUSE, KUZHIMANNA, ERNAD. BY ADV. SRI.V.V.ASOKAN RESPONDENT(S): RESPONDENTS/COMPLAINANT -------------------------------------- 1. CHEMBAN HASSAN,S/O.MOHAMMED, AGED 42 YEARS, NEDIYIRUPPU AMSOM DESOM, ERNAD. 2. STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.BABU S. NAIR FOR R1 PUBLIC PROSECUTOR SRI.MUHAMMED PUZHAKKARA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.417 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of June, 2010 ORDER Revision petitioner is the accused in C.C.No.269/2001 of Judicial First Class Magistrate Court, Malappuram and appellant in Crl.Appeal No.82/2003 of Sessions Court, Manjeri. He was convicted under Section 138 of Negotiable Instruments Act and was sentenced to undergo simple imprisonment for one month and to pay Rs.20,000/- as compensation to the complainant under Section 357(3) Cr.P.C., in default, to undergo simple imprisonment for one month which is confirmed in appeal by the Sessions Court, Manjeri by judgment dated November 28, 2003 in Crl.Appeal No.82/2003. The accused has now come up in revision challenging his conviction and sentence. 2. The case of the revision first respondent/complainant as testified by him as PW1 before the trial court and as detailed in the complaint was that accused borrowed Rs. 20,000/- from the complainant promising to repay the same within one month and to discharge that liability accused issued Ext.P1 cheque dated June 4, 1999 for Rs. 20,000/- which when presented for collection was Crl.R.P.No.417/2004 2 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 24,1999, 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. 4. Complainant was examined as PW1 and the Manager of the bank was examined as PW2 and Exts.P1 to P8 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the accused denied having borrowed any amount from the complainant and submitted that the cheque Ext.P1 was issued by him to the brother's son of the complainant when he purchased 15 bags of poultry feeds, price of which he has already paid. No defence evidence was adduced. 4. The trial court on an appreciation of evidence found the revision petitioner guilty of the offence punishable under Section 138 Crl.R.P.No.417/2004 3 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 sentence. 5. Heard the counsel for the revision petitioner and the counsel for the first revision respondent. 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. PW 1, the complainant testified in terms of the complaint before the trial court. No serious discrepancies or inconsistencies were brought out during his cross examination to discredit his evidence. That apart, his evidence is supported by Exts.P1 to P8. 8. The specific case of the accused was that Ext.P1 cheque was issued by him to the brother's son of complainant at the time of Crl.R.P.No.417/2004 4 purchasing 15 bags of poultry feeds price of which he has already paid and that misusing that cheque complainant has filed this complaint. No evidence was adduced on the side of the accused to prove the same. Even to the notice Ext.P4, no reply was sent by the accused. Therefore both the courts below are justified in rejecting the above case of the accused. Further, as the execution 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 him. No evidence was adduced by the accused to rebut the above presumption. 9. For all these reasons, I hold that the trial court as well as the appellate court is 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 and convicting him thereunder. Therefore I confirm the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act. 10. As regards the sentence, the Trial court imposed a sentence of simple imprisonment for one month and to pay a compensation of Rs. 20,000/-, in default to undergo simple imprisonment for a further Crl.R.P.No.417/2004 5 period of one month which is confirmed in appeal. Taking into consideration the fact that the transaction is of the year 1999 and that the amount involved in only Rs. 20,000/-, I feel that a substantive sentence of imprisonment till the rising of court and a compensation of Rs.20,000/- as ordered by the trial court would be reasonable. 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 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. 20,000/- to the complainant as provided under Section 357(3) Cr.P.C., in default to undergo simple imprisonment for one month. One month's time is granted for payment of compensation. The revision petitioner shall surrender before the trial court on or before 30/07/2010 to receive the sentence. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv Crl.R.P.No.417/2004 6