IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 8TH OCTOBER 2009 / 16TH ASWINA 1931 Crl.Rev.Pet.No. 766 of 2001 ----------------------------- CRL.M.P. 1139/99/99 IN CRA.195/1999 of ADDL. SESSIONS COURT, ALAPPUZHA CC.277/1996 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHERTHALA .................... REVN. PETITIONER(S):/PETITIONER/APPELLANT/ACCUSED:- --------------------- T.B.JANARDHANAN, THEKKAVEETTIL, KADAKKARUPPALLI P.O., CHERTHALA. BY ADV. SRI.THOMAS JOSEPH RESPONDENT(S): CR.PETITIONERS/RESPONDENTS/COMPLAINANT & STATE:- --------------- 1. K..AHAMMMED SHAFI, PUTHEZATH HOUSE, VAYALAR P.O., CHERTHALA. 2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.J.OM PRAKASH FOR R1 SRI.PUZHAKKARA MOHAMMED FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.P. No. 3591 of 2001 in Crl.R.P. No. 766 of 2001 Dismissed. 8-10-2009 Sd/- P.Q.Barkath Ali, Judge. P.Q. BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 766 of 2001 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 8th day of October, 2009 O R D E R The revision petitioner is the accused in C.C.No.277 of 1996 of the Judicial Magistrate of the First Class-I, Cherthala and the appellant in Crl.A.No.195 of 1999 of Addl. Sessions Court, Alappuzha. He was convicted under sec.138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for a period of two months and to pay fine of Rs.5,000/- and in default to undergo simple imprisonment for a period of two months. Out of fine amount, if realized, Rs.4,000/- was ordered to be paid to the complainant as compensation. Against the conviction and sentence, he preferred Crl.A.No.195 of 1999 before the Addl. Sessions Court, Alappuzha with a petition to condone the delay, which was dismissed due to his absence. Consequently, the appeal was also dismissed. Aggrieved by the above, he has come up in revision. 2. The case of the 1st respondent/complainant, as testified by PW1 before the trial court, was that the revision petitioner/accused borrowed Rs.4,000/- on March 20, 1995 from the complainant and to discharge that liability, the revision petitioner issued cheque Ext.P1 dated March 20, 1995, drawn on the Cherthala Service Co-operative Bank which when presented for collection was returned for want of sufficiency of funds in the account CRRP 766/01 2 of the revision petitioner in the bank and that in spite of notice Ext.P4 dated July 19, 1995 the accused did not repay the amount, which is punishable under section 138 of the Negotiable Instruments Act. 3. The trial court on receipt of the complaint, recorded the sworn statement of the complainant and took cognizance of the case. The accused, on appearance before the trial court, pleaded not guilty to a charge under sec.138 of the Negotiable Instrument Act. 4. PW.1 was examined and Exts.P1 to P6 were marked on the side of the complainant before the learned Magistrate. When questioned under sec.313 Cr.P.C. by the trial court, the accused denied the entire transaction. No defence evidence was adduced. 5. The trial court on an appreciation of the evidence found the revision petitioner/accused guilty of the offence punishable under section138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid. against the conviction and sentence, he filed an appeal with a petition to condone the delay, which was dismissed for the nonappearance of the revision petitioner. 6. In this revision the accused has challenged the order of lower appellate court in Crl.M.P. No.1139 of 1999 dated 28-2-2000 dismissing the petition for condoning the delay caused in filing the criminal appeal. To CRRP 766/01 3 avoid further delay in this matter, this revision petition is treated as revision against the conviction and sentence of the revision petitioner. 7. The following points arise for consideration in this revision :- 1) Whether the conviction of the revision petitioner under section 138 of the Negotiable Instruments Act by the trial court can be sustained? 2) Whether the sentence imposed against the revision petitioner is excessive and unduly harsh ?. 8. The complainant as PW1 testified in terms of the complaint before the trial court. I have gone through his evidence. Nothing was brought out to discredit his evidence. PW1 has emphatically denied the suggestion that the accused issued a signed blank cheque to him, which was misused by him. For these reasons, I feel that the trial court is perfectly justified in accepting the evidence and convicting the accused as aforesaid. The appeal was dismissed on the ground of delay. Issuance of cheque Ext.P1 is admitted by the accused. Therefore, presumption envisaged under sections 118 and 138 of the Negotiable Instruments Act is available for the complainant. The accused has not rebutted the above presumption effectively. That being so, I am inclined to believe the evidence of PW1 and confirm the conviction of the revision petitioner by the trial court. 9. The trial court has imposed a sentence of simple imprisonment for CRRP 766/01 4 two months and to pay fine of Rs.5,000/-. Taking into consideration the fact that the transaction is of the year 1995, I feel that a sentence of simple imprisonment till the rising of court and a fine of Rs.10,000/- and in default to undergo simple imprisonment for three months would meet the ends of justice. 10. In the result, the revision petition is allowed in part. The conviction of the revision petitioner under section 138 of the Negotiable Instruments Act is confirmed. The sentence is modified to the effect that the revision petitioner is sentenced to undergo simple imprisonment till the rising of court and to pay a fine of Rs.10,000/-, in default to undergo simple imprisonment for three months. The fine, if realized, shall be paid to the complainant as compensation as provided under section 357(1) of the Code of Criminal Procedure. His bail bonds are cancelled. The revision petitioner shall surrender before the trial court on or before 30-10-2009 to suffer the sentence. P.Q. BARKATH ALI, JUDGE mn CRRP 766/01 5 P.Q. BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Crl.R.P. No. 766 of 2001 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- O R D E R 8th day of October, 2009