IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 1ST JULY 2011 / 10TH ASHADHA 1933 Crl.Rev.Pet.No. 4157 of 2008() ------------------------------ CRA.320/2007 of ADDL.DISTRICT & SESSIONS (ADHOC) FAST TRACK COURT III, PATHANAMTHITTA CC.1373/2006 of JUDL.MAGISTRATE OF FIRST CLASS-I, PATHANAMTHITTA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED:- --------------------- M.S.SASIDHARAN, MURIKKETHU (H) NEAR ST.THOMAS COLLEGE, KOZHENCHERRY. BY ADV. SRI.M.T.SURESHKUMAR SRI.V.V.RAJA RESPONDENT(S): RESPONDENT/COMPLAINANT:- --------------- 1. CHANDRIKA RAVEENDRAN PRASOONAM, KOZHENCHERRY EAST P.O., KOZHENCHERRY VILLAGE, 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.BIJI MATHEW FOR R1 PUBLIC PROSECUTOR SRI JAIBY PAUL FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Crl.R.P. No. 4157 of 2008 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 1st day of July, 2011 O R D E R Revision petitioner is the accused in C.C.No.1373/2006 on the file of the Judicial Magistrate of the First Class-I, Pathanamthitta and appellant in Crl.A.No. 320/2007 on the file of the Additional District and Sessions (Adhoc)Fast Track Court-III, Pathanamthitta. He was convicted under section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for four months and to pay a fine of `75,000/-, in default to undergo simple imprisonment for two months by the learned Magistrate. On appeal by the accused, the lower appellate court confirmed his conviction and sentence. The accused has come up in revision challenging his conviction and sentence. 2. The case of the first respondent/complainant, as testified by her as PW1 before the trial court and as detailed in the complaint, was that the accused borrowed `75,000/- CRRP 4157/2008 2 from her and to discharge that debt, the accused issued cheque Ext.P1 dated May 2, 2006 drawn on the Federal Bank Ltd., Kozhencherry Branch for the same amount to her, which when presented for collection was returned dishonoured for want of sufficiency of fund in the account of the accused in the bank and that in spite of notice Ext.P3 May 4, 2006, the accused did not re-pay the amount. Therefore, the complainant filed the complaint before the trial court under section 138 of the Negotiable Instruments Act. 3. On receipt of the complaint, the learned Magistrate recorded the sworn statement of the complainant and took cognizance of the offence. The accused on appearance before the trial court, pleaded not guilty to the charge under section 138 of the Negotiable Instruments Act. The complainant was examined as PW1 and Exts.P1 to P5 were marked on the side of the prosecution. When the accused was questioned under section 313 Cr.P.C. by the learned Magistrate, he submitted that he borrowed `25,000/- from CRRP 4157/2008 3 the complainant, for which he gave a signed blank cheque, that even after the discharge of that debt, the complainant did not return the cheque, which was misused by the complainant and created Ext.P1. No defence evidence was adduced. 4. The trial court, on an appreciation of the evidence, found the accused guilty of the offence punishable under section 138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him as afore said. On appeal by the accused, the lower appellate court confirmed his conviction and sentence. The accused has 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/accused under section 138 of the Negotiable Instruments Act can be sustained? CRRP 4157/2008 4 2) Whether the sentence imposed on the revision petitioner/accused is excessive or unduly harsh ? 7. Point No.1:- The complainant as PW1 testified in terms of the complaint before the trial court. Nothing was brought out during cross-examination to discredit her evidence. Further, her evidence is supported by Exts.P1 to P5. 8. The case of the accused, as suggested during the cross-examination of PW1 and as stated when questioned under section 313 Cr.P.C. by the learned Magistrate, was that he borrowed `25,000/- from the complainant, for which he issued a signed blank cheque, that even after the discharge of that debt, the complainant did not return the cheque, which was misused by the complainant and created Ext.P1. No evidence was adduced by the accused to prove his case. Further as the accused admits execution of Ext.P1, presumption, as envisaged under sections 139 and 118 of the CRRP 4157/2008 5 Negotiable Instruments Act, is available for the complainant. No satisfactory evidence was adduced by the accused to rebut the above presumption. Therefore, in my view the trial court as well as the lower appellate court is perfectly justified in believing the evidence of PW1 and convicting the accused under section 138 of the Negotiable Instruments Act. Consequently, the conviction of the revision petitioner under section 138 of the Negotiable Instruments Act by the trial court which was confirmed in appeal is upheld. 9. Point No.2:- As regards the sentence, the trial court has imposed a sentence of simple imprisonment for four months and to pay a fine of `75,000/-, in default to undergo simple imprisonment for two months, which was confirmed in appeal by the lower appellate court. The transaction is of the year 2006. Therefore, a lenient view is taken and I feel that sentence of imprisonment till the rising of court and to pay compensation of `75,000/- with CRRP 4157/2008 6 default sentence would meet the ends of justice 10. In the result, the revision petition is allowed in part. The conviction of the revision petitioner/accused under section 138 of the Negotiable Instruments Act rendered by the trial court which was confirmed in appeal by the lower appellate court is upheld. The sentence imposed on the revision petitioner is modified to the effect that he is sentenced to undergo imprisonment till the rising of court and to pay compensation of `75,000/- to the complainant. Fine, if any, deposited by the revision petitioner/accused before the trial court shall be adjusted towards the compensation ordered to be paid. His bail bonds are cancelled. Three months’ time is granted for payment of the compensation. The revision petitioner/accused shall surrender before the trial court on or before July 25, 2011 to suffer the sentence. P.Q.BARKATH ALI, JUDGE. mn CRRP 4157/2008 7 P.Q.BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~ Crl.R.P. No. 4157 2008 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~ O R D E R 1-7-2011