IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 19TH NOVEMBER 2009 / 28TH KARTHIKA 1931 Crl.Rev.Pet.No. 577 of 2003(A) ------------------------------------------- CRL.A.NO.267/2001 OF ADDL.SESSIONS COURT, KOTTAYAM, CC.NO.969/1998 OF JUDL.MAGISTRATE OF FIRST CLASS-III, KOTTAYAM. .................... REVISION PETITIONER/APPELLANT - IST ACCUSED: --------------------------------------------------------------------------- THOMAS PARAPPALLY, MANAGING DIRECTOR, FRESH COCONUT PRODUCTS LTD., KADUPPASSERRI P.O, THRISSUR DISTRICT. BY ADV. MR.M.C.GOPI. RESPONDENTS IN THE CRL. REVISION/RESPONDENTS IN THE CRL.APPEAL/COMPLAINANT AND THE STATE: ------------------------------------------------------------------------------------------ 1. M/S.JELITTA, P.B.NO.8, BAKER JUNCTION, KOTTAYAM, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER MOHAN DAS. G. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADVS. MR.MATHEWS J.NEDUMPARA, MR.SANJAYAN.K.R, MR.SREEVALSAN.V, R2 BY PUBLIC PROSECUTOR SMT. REKHA C. NAIR. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/11/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.R.P. NO. 577/2003-A: ORDER ON CRL.M.P. NO. 2068/2003 IN CRL.R.P. NO. 577/2003-A DISMISSED 19/11/2009. SD/- P.Q.BARKATH ALI, JUDGE. //TRUE COPY// P.A. TO JUDGE. Prv. P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.577 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the19th day of November, 2009 ORDER Revision petitioner is the first accused in C.C.No.969/1998 of Judicial First Class Magistrate Court II, Kottayam and appellant in Crl.Appeal No.267/2001 of Additional Sessions Court, Kottayam. He was convicted under Section 138 of Negotiable Instruments Act and was sentenced to undergo simple imprisonment for three months by the trial court which is confirmed in appeal. As the second accused was absconding, case against him was split up. Now the first accused has 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 towards the amount due to the complainant, accused 1 and 2 issued the cheque Ext.P1 dated January 31, 1998 for Rs. 21,762/- drawn on the State Bank of Travancore, Industrial Finance Branch, Ernakulam in favour of the complainant which when presented for collection was Crl.R.P.No.577/03 Page numbers 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, the accused did not repay the amount which is an offence punishable under Section 138 of Negotiable Instruments Act. 3. Initially there were two accused persons in this case. As the second accused was absconding, case against him was split up and refiled as C.C.No.540/2001 before the trial court. The learned Magistrate on receipt of the complaint recorded the sworn statement of the complainant PW1 and took cognizance of the offence. The first 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 P7 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C the accused denied the entire transaction. No defence evidence was adduced. 4. 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 Crl.R.P.No.577/03 Page numbers sentenced him as aforesaid which is confirmed in appeal. The first accused has now come up in revision challenging his conviction and sentence. 5. Heard the learned counsel for the revision petitioner and the learned counsel for the first respondent/complainant. 6. The following points arise for consideration : 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 can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? Point No.1 7. PW1 was examined and Exts.P1 to P6 were marked on the side of the complainant to prove the guilt of the accused. I have gone through the evidence of PW1. Nothing was brought out during his cross examination to discredit his evidence. Further his evidence is supported by Exts.P1 to P10. 8. Counsel for the revision petitioner arguing the revision Crl.R.P.No.577/03 Page numbers submitted that the accused was the managing Director of Fresh Coconut Products Ltd, Kaduppisserry , Thrissur district, that towards business transaction he has kept some signed black cheques in the company and that when the new Managing Director came he took away this cheque and misused the same. Both the courts below have rejected the above case of the first accused. No evidence is also adduced on the side of the revision petitioner to prove the said contention. Therefore, in my view, both the courts below have rightly rejected the above contention. I have already chosen to believe the evidence of PW1 regarding the transaction. For all these reasons, I am of the view that both the courts below is perfectly justified in accepting the evidence of PW1 and holding that the revision petitioner and second accused issued the cheque Ext.P1 to discharge their liability to PW1 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 in spite of the notice the revision petitioner and the second accused did not repay the amount. That being so, the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act Crl.R.P.No.577/03 Page numbers has to be confirmed. Point No.2 9. As regards the sentence, revision petitioner was sentenced to undergo simple imprisonment for three months by the trial court which is confirmed in appeal. Counsel for the revision petitioner submits that revision petitioner is aged more than 75 and that therefore sentence of imprisonment may be avoided. Taking into consideration the above aspect and the fact that the transaction is of the year 1998, I feel that a sentence of imprisonment till the rising of court and a fine of Rs. 21,800/- would meet the ends of justice. In the result, revision petition is allowed in part. Conviction of the revision petitioner under Section 138 of Negotiable Instruments Act is confirmed. He is sentenced to undergo imprisonment till the rising of court and to pay a fine of Rs. 21,800/-, in default, to undergo simple imprisonment for three months. The fine amount, if realised, shall be paid to the complainant as compensation as provided under Section 357(1) Cr.P.C. His bail bonds are cancelled. The revision petitioner shall surrender before the trial court on or before 20-12-2009 to Crl.R.P.No.577/03 Page numbers receive the sentence. Two month's time is granted for payment of fine. Counsel for the revision petitioner submits that the revision petitioner has already deposited Rs. 12,381/- before the trial court in pursuance of the direction issued by this court on 23-04-2009. The said amount shall be adjusted towards the fine amount. The first respondent/complainant is entitled to withdraw that amount. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.577/03 Page numbers Crl.R.P.No.577/03 Page numbers P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.577/03 Page numbers