IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 25TH NOVEMBER 2009 / 4TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 1140 of 2002() ------------------------------ CRA.583/2001 of SPL.COURT SPE/CBI-II & IV ADDL.SESSIONS COURT, ERNAKULAM CC.338/1998 of ADDL.CHIEF JUDICIAL MAGISTRATE (E.O.),ERNAKULAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED NO.1 -------------------------------------- P.SYED, PARTNER, TWINS WOOD INDUSTRIES, KANDAMANGALATHU HOUSE, PADINJARE VELIYATHU PARAMBIL, VADAKKUMBHAGOM EDAPPALLY NORTH, ERNAKULAM DISTRICT. BY ADV. SRI.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR SRI.M.R.JAYAPRASAD SRI.N.V.AJAYAKUMAR SRI.K.K.RAJEEV SRI.S.VIBHEESHANAN RESPONDENT(S): RESPONDENT/STATE AND COMPLAINANT ----------------------------------------------- 1. P.X.SHAJAN 50/577, POTHADY HOUSE, PONEKKARA, KOCHI-26. 2. STATE OF KERALA, REPRESENTED BY DIRECTOR OF PROSECUTIONS, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.JOHNSON ABRAHAM FOR R1 SRI.NELSON ABRAHAM FOR R1 PUBLIC PROSECUTOR SRI C.M.KAMMAPPU FOR R2. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.P..6075 OF 2002 IN CRL.R.P.1140 OF 2002 ........................... DISMISSED 25.11.2009 SD/- P.Q.BARKATHA ALI, JUDGE. P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P. 1140 of 2002 ------------------------------------------------------ Dated: NOVEMBER 25, 2009 ORDER The revision petitioner is the 1st accused in C.C.338/1998 on the file of the Addl. Chief Judicial Magistrate (Economic Offences), Ernakulam, and the appellant in Crl.A.583/2001 of the IVth Additional Sessions Court, Ernakulam. He was convicted under sec.138 of the Negotiable Instruments Act and was sentenced to undergo simple imprisonment for three months and to pay a fine of Rs.40,000/-, in default to undergo simple imprisonment for one month. Out of the fine amount, Rs.38,000/- was ordered to be paid to the complainant as compensation as provided under sec.357(1) of Cr.P.C. As the 2nd accused is the firm represented by the 1st accused, no separate sentence was awarded to the 2nd accused. On appeal the conviction of the revision petitioner under sec.138 of the Negotiable Instruments Act is confirmed, but the sentence was modified to the effect that he was sentenced to pay a fine of Rs.40,000/-, in default to undergo simple imprisonment for one month. The direction to pay Rs.38,000/- out of the fine amount as compensation to the complainant was also confirmed. The accused has come up in revision challenging his conviction and sentence. 2. The case of the complainant as testified by him as PW.1 CRL. R.P. 1140 of 2002 2 before the trial court and as detailed in the complaint is that the 1st accused and his brother late Sahad, who are twin brothers, borrowed Rs.70,000/- from the complainant and to discharge that liability they issued two cheques for Rs.35000/- each dated 13.10.1996 drawn on the Punjab National Bank, M.G.Road Branch, Ernakulam, which, when presented for collection was returned dishonoured for want of sufficiency of funds in the account of the revision petitioner in the bank and that in spite of the notice Ext.P4 dated April 28, 1997 to the 1st accused and his brother Sahad, they did not repay the amount, which is an offence punishable under sec.138 of the Negotiable Instruments Act. 3. The complaint was originally filed before the Chief Judicial Magistrate Court, Ernakulam. On receipt of the complaint the learned Magistrate 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 Instruments Act. Thereafter the case was made over to the trial court, Addl. Chief Judicial Magistrate Court (Economic Offences), Ernakulam for trial and disposal. 4. PW.1 was examined and Exts.P1 to P8 were marked on the side of the complainant. When questioned under sec.313 Cr.P.C. the accused denied the entire transaction and submitted that misusing one of the signed blank cheques issued by him, the complainant has created Ext.P1 cheque. On the side of the accused he was examined CRL. R.P. 1140 of 2002 3 as DW.2. DW1 also was examined and Exts.D1 and D2 were marked on the side of the accused. 5. On an appreciation of evidence the learned Magistrate 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 and the sentence was modified as mentioned above. The accused has come up in revision challenging his conviction and sentence. 6. Heard the learned counsel for the revision petitioner and the revision 1st respondent. 7. 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? Point No.I 8. PW.1 was examined and Exts.P1 to P8 were marked on the side of the complainant to prove the guilt of the accused. PW.1/the complainant testified in terms of the complaint. I have gone through his evidence. No serious discrepancy was brought out in his cross- examination to discredit his evidence. Further, his evidence is supported by Exts.P1 to P8. CRL. R.P. 1140 of 2002 4 9. The case of the accused as testified by him as DW.2 and as stated when questioned under sec.313 Cr.P.C. was that himself and his brother had taken a loan of Rs.50,000/- from the complainant and as security they gave him the title deed of the property and two blank signed cheques and that though they repaid the entire amount, the complainant misused the blank signed cheque given to him and created Ext.P1. There is no substance in the above contention. No evidence is adduced on the side of the accused to prove the above transaction. 10. The main contention raised by the revision petitioner is that Ext.P1 cheque was issued on 13.10.1996, that on that day the brother of the accused Sri Sahad died in the morning itself; that being so, Ext.P1 cheque could not have been issued by the accused and his brother Sahad. There is no substance in the above contention. PW.1/complainant testified that the cheque was issued even prior to 13.10.1996. Therefore I find no merit in the above contention of the revision petitioner. No other point is argued before me. For all these reasons accepting the evidence of PW.1, I hold that both the courts below are justified in coming to the conclusion that the 1st accused and his brother Sahad issued the cheque Ext.P1 to the complainant to discharge their liability to PW.1, which when presented for collection was returned dishonoured for want of sufficiency of funds in the account of the revision petitioner in the bank and that in spite of notice CRL. R.P. 1140 of 2002 5 the amount was not repaid which is an offence punishable under sec.138 of the Negotiable Instruments Act. That being so, the conviction of the revision petitioner under sec. 138 of the Negotiable Instruments Act is confirmed. Point No.II 11. As regards the sentence the the trial court imposed sentence of simple imprisonment for three months and to pay a fine of Rs.40,000/- which is modified in appeal to a fine of Rs.40,000/-, in default to undergo simple imprisonment for one month. Out of the fine amount, if realised, Rs.38,000/- was ordered to be paid to the complainant as compensation. I find no special reason to reduce the same. 12. In the result, confirming the conviction and sentence of the accused, the revision petition is dismissed. Learned counsel for the revision petitioner submits that 50% of the cheque amount has already been deposited before the trial court. The said amount shall be adjusted towards the fine imposed. Two months time is granted for payment of the balance fine. The complainant is entitled to withdraw that amount. P.Q. BARKATH ALI, JUDGE mt/-