IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 13TH OCTOBER 2009 / 21ST ASWINA 1931 Crl.Rev.Pet.No. 885 of 2001() ----------------------------- CRA.214/2000 of ADDL. SESSIONS COURT, ALAPPUZHA CC.575/1998 of JUDL.MAGISTRATE OF FIRST CLASS, AMABALAPUZHA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------- M.P.RADHAKRISHNAN NAIR, AGED 44 MUNDUKATTU HOUSE PANDAMKARY MURI EDATHUA VILLAGE BY ADV. SRI.S.SANAL KUMAR RESPONDENT(S): RESPONDENTS/COMPLAINANT --------------- 1. K.C.JACOBKUTTY, AGED 45 KATHANARUPARAMBIL HOUSE NEERETTUPURAM P.O. ALAPPUZHA DISTRICT 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ADV. SRI.K.A.HASSIM FOR R1 PUBLIC PROSECUTOR SRI.REKHA C. NAIR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 885 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of October, 2009 ORDER The revision petitioner is the accused in C.C.No.575/1998 of Judicial First Class Magistrate Court, Ambalapuzha and appellant in Crl.Appeal No. 214/2000 of Additional Sessions Court, Alappuzha. The revision petitioner was convicted under Section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for one month by the trial court which is confirmed in appeal. Now the accused has come up in revision challenging his conviction and sentence. 2. The case of the revision first respondent/complainant as testified by him as PW1 and as detailed in the complaint before the trial court was that the accused borrowed Rs. 7,200/- from the complainant on March 29, 1998 agreeing to repay the amount within one month and to discharge that liability he issued the cheque - Ext.P1 dated 30-04-1998 drawn on the Alappuzha District Co-operative Bank Ltd., Edathua Branch which when presented for collection was returned Crl.R.P.No.885/01 Page numbers dishonoured for want of sufficiency of funds in the account of the accused in the bank and that inspite of the notice - Ext.P4, the accused did not repay the amount which is an offence punishable under Section 138 of the Negotiable Instruments Act. 3. The learned Magistrate on receipt of the complaint recorded the sworn statement of the complainant PW1 and took cognizance of the case. The accused/revision petitioner on appearance before the trial court pleaded not guilty to the charge under Section 138 of the Negotiable Instruments Act. PWs 1 was examined and Exts.P1 to P7 were marked on the side of the complainant before the trial court. When questioned under Section 313 Cr.P.C., the accused denied the entire transaction. No defence evidence was adduced. 4. The learned Magistrate 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 sentenced him as aforesaid. The lower appellate court confirmed his conviction and sentence. 5. The following points arise for consideration : Crl.R.P.No.885/01 Page numbers 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. The complainant as PW1 testified before the trial court in terms of the complaint . I have gone through the evidence of PW1, I find no suspicious inconsistencies or discrepancies in his evidence so as to discredit his evidence. Further his evidence is supported by Exts.P1 to P7. As the issuance of Ext.P1 cheque was admitted by the accused, presumptions under Sections 118 and 139 are available for the complainant. The accused did not adduce any evidence to rebut the above said presumption. Therefore, in my view, the trial court as well as the lower appellate court is perfectly justified in finding that the accused has issued the cheque Ext.P1 which when presented for collection was dishonoured for want of sufficiency of funds in the account of the accused in the bank and that inspite of notice Ext.P4, the Crl.R.P.No.885/01 Page numbers accused did not repay the amount which is an offence punishable under Section 138 of the Negotiable Instruments Act. Therefore, I confirm the conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act rendered by the trial court which is confirmed in appeal. Point No.2 8. As regards the sentence, the trial court imposed simple imprisonment for one month which is confirmed in appeal. The transaction is of the year 1998. Further the accused is now aged more than 50. Taking into consideration all these aspects, I feel that a sentence of imprisonment till the rising of court and a fine of Rs.7200/- would meed the ends of justice. In the result, the revision petition is allowed in part. The conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act by the trial court which is confirmed in appeal is upheld. The revision petitioner/accused is sentenced to undergo simple imprisonment till the rising of court and to pay a fine of Rs. 7200/-, in default, to undergo simple imprisonment for one Crl.R.P.No.885/01 Page numbers month. 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. One month's time is granted for payment of fine amount. Revision petitioner shall surrender before the trial court on or before 30-10-2009 to receive the sentence. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.885/01 Page numbers