IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 4TH DECEMBER 2009 / 13TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 354 of 2002() ----------------------------- CRA.85/1999 of SESSIONS COURT, THRISSUR CC.68/1997 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KUNNAMKULAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- P.K.M.MUSADIQUE S/O.PALAKKAL VEETTIL KUNJUMUHAMMED,TRHIPPILACHERY DESOM, THALAPPILLY TALUK. BY ADV. SRI.V.PHILIP MATHEW RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE ----------------------------------------------- 1. VINOD, S/O.KOMBIL VEETTIL KESAVAN, KUNNAMKULAM VILLAGE, KIZHOOR DESOM, TALAPPILLY TALUK. 2. STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. ADV. SRI.JIJO PAUL FOR R1 R2 BY PUBLIC PROSECUTOR SRI C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P.354 of 2002 ------------------------------------------------------ Dated: DECEMBER 4, 2009 ORDER The revision petitioner is the accused in C.C.No.68/1997 of the Judicial First Class Magistrate Court, Kunnamkulam, and the appellant in Crl.A.No.85/1999 of Sessions Court, Thrissur. He was convicted under sec.138 of the Negotiable Instruments Act and was sentenced to undergo simple imprisonment for three months. On appeal his conviction was confirmed, but the sentence was altered and reduced to simple imprisonment for 1½ months. The accused was ordered to pay compensation of Rs.50,000/- to the complainant. The accused has now come up in revision challenging his conviction and sentence. 2. The case of the 1st respondent/complainant as testified by him as PW.2 before the trial court and as detailed in the complaint is that the accused borrowed Rs.50,000/- from the complainant and to discharge that liability the accused issued a cheque Ext.P1 dated August 22, 1996 drawn on the Canara Bank, Kunnamkulam Branch, which when presented for collection was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of the notice Ext.P8 dated October 3, 1996, the accused did not repay the amount, which is an offence punishable CRL. R.P.354 of 2002 2 under sec.138 of the Negotiable Instruments Act. 3. On receipt of the complaint the learned Magistrate recorded the sworn statement of the complainant/PW.2 and took cognizance of the offence. The accused on appearance before the trial court pleaded not guilty to the charge under sec.138 of the Negotiable Instruments Act. PWs.1 and 2 were examined and Exts.P1 to P10 were marked on the side of the complainant. When questioned under sec.313 Cr.P.C. the accused denied the entire transaction. No defence evidence was adduced. 4. The trial court on an appreciation of evidence found the accused guilty of the offence punishable under sec.138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid. On appeal his conviction was confirmed but the sentence was modified as mentioned above. The accused has now up in revision challenging his conviction and sentence. 5. Heard the learned counsel for the revision petitioner and the 1st respondent/complainant 6. The following points arise for consideration:- I. Whether the conviction of the revision petitioner under sec.138 of the Negotiable Instruments Act can be sustained? II. Whether the sentence imposed is excessive or unduly harsh? CRL. R.P.354 of 2002 3 Point No.I 7. The complainant was examined as PW.2 before the trial court and Exts.P1 to P10 were marked on the side of the complainant to prove the guilt of the accused. PW.2 testified in terms of the complaint. Nothing was brought out during cross-examination to discredit his evidence. Further his evidence is supported by Exts.P1 to P10 and PW.1, manager of the bank. 8. The case of the accused when questioned under sec.313 Cr.P.C was that he issued the cheque only as a security. But no evidence was adduced by him to prove the same. That apart, he did not send any reply to the notice Ext.P8. As the accused admits the execution of Ext.P1 cheque, the presumption under secs.118 and 139 of the Negotiable Instruments Act is available to the complainant. The accused did not adduce any evidence to rebut the above presumption. For all these reasons I hold that both the courts below are justified in accepting the evidence of PWs.1 and 2 and finding that the accused is guilty of the offence punishable under sec.138 of the Negotiable Instruments Act. Therefore the conviction of the accused under sec.138 of the Negotiable Instruments Act is confirmed. Point No.II 9. As regards the sentence, the trial court has imposed a sentence of simple imprisonment for three months which is modified CRL. R.P.354 of 2002 4 by the appellate court to simple imprisonment for 1½ months and to pay compensation of Rs.50,000/- to the complainant. The transaction is of the year 1996. Taking into consideration this aspect, I feel that a sentence of imprisonment till the rising of court and a fine of Rs.60,000/- would meet the ends of justice. In the result, the revision petition is allowed in part. The conviction of the revision petitioner under sec.138 of the Negotiable Instruments Act is confirmed. The sentence is modified to the effect that the accused is sentenced to undergo imprisonment till the rising of court and to pay a fine of Rs.60,000/-, in default to undergo simple imprisonment for six months. The fine amount, if realised, shall be paid to the complainant/PW.2 as provided under sec.357(1) Cr.P.C. The revision petitioner shall surrender before the trial court on or before 30.12.2009 to receive the sentence. One month time is granted for payment of fine. P.Q. BARKATH ALI, JUDGE CRL.M.P.2529 & 3944 OF 2002 Dismissed. 4.12.2009. P.Q. BARKATH ALI, JUDGE mt/-