IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 2ND DECEMBER 2010 / 11TH AGRAHAYANA 1932 Crl.Rev.Pet.No. 3064 of 2004(C) ------------------------------- CRA.477/2002 of ADDL.SESSIONS COURT, KOTTAYAM CC.118/2001 of JUDL.MAGISTRATE OF FIRST CLASS - I, ETTUMANOOR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- RAMESHAN, THREE STAR WORKSHOP, NAGAMPADAM, KOTTAYAM. NOW R/A. SHASTHANKUNNEL HOUSE, NEAR HOUSING COLONY MUDYOORKKARA KARA, PERUMBAYIKKADU VILLAGE, KOTTAYAM. BY ADV. SRI.M.P.MADHAVANKUTTY RESPONDENT(S): STATE AND COMPLAINANT: ------------------------------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUKUMARAN, KALPAKA WOOD INDUSTRIES, KUMARANELLOOR, KOTTAYAM. PUBLIC PROSECUTOR SRI.SABU SREEDHARAN SRI.P.V.SANTHOSH JOSE FOR R2 SMT.R.SUJA FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.A.NO.13919/2004 IN CRL.R.P.NO.3064/2004 DISMISSED 02-12-2010 /-, P.Q.BARKATH ALI, JUDGE /True Copy/ PA to Judge P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.3064 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of December,2010 ORDER Revision petitioner is the accused in C.C.No.118/2001 on the file of Judicial First Class Magistrate Court, Ettumanoor and appellant in Crl.Appeal No.477/2002 of Addl.Sessions Court, Kottayam. The learned Magistrate by judgment dated October 19, 2002 convicted him under Section 138 of Negotiable Instruments Act and sentenced him to undergo simple imprisonment for three months and to pay a compensation of Rs. 75,000/- to the complainant under Section 357 Cr.P.C. which is confirmed in appeal by the lower appellate court by judgment dated March 1, 2004. 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 accused borrowed Rs.55,000/- from the complainant and to discharge that liability, he issued the cheque Ext.P1 dated October 3, 2000 which when presented for collection was returned dishounoured Crl.R.P.No.3064/2004 2 for want of sufficiency of funds in the account of the accused in the bank and that in spite of notice Ext.P3, 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. Pws 1 and 2 were examined 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 the entire transaction. No defence evidence was adduced. 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 sentence. Crl.R.P.No.3064/2004 3 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 P8 and the evidence of PW2, the Postman who delivered the lawyer notice to the accused. 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. by the learned Magistrate was that as security for the furniture purchased from the shop of the complainant, a blank signed cheque was given to the complainant which was misused by him and created Ext.P1. No evidence was adduced by him to prove his case. That apart, the service of notice on him is proved by the Crl.R.P.No.3064/2004 4 evidence of PW2, the concerned Postman and Ext.P4, the postal acknowledgment. The accused has not chosen to send any reply to the same. Therefore, in my view, 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 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 and to pay a compensation of Rs. 75,000/- which is confirmed in appeal. Taking into consideration the fact that the transaction is of the year 2000, I feel that a sentence Crl.R.P.No.3064/2004 5 of imprisonment till the rising of court and a compensation of Rs.75,000/- 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.75,000/- to the complainant as provided under Section 357(3) Cr.P.C., in default to undergo simple imprisonment for three months. Three months' time is granted for payment of compensation. The amount, if any, deposited by the revision petitioner before the trial court shall be adjusted towards the compensation amount awarded. The complainant is permitted to withdraw that amount. The revision petitioner shall surrender before the trial court on or before January 15, 2011 to receive the sentence. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.3064/2004 6