IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 5TH OCTOBER 2009 / 13TH ASWINA 1931 Crl.Rev.Pet.No. 724 of 2001() ----------------------------- CRA.71/2000 of ADDL. SESSIONS COURT, ALAPPUZHA CC.43/1995 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHERTHALA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED:- --------------------- M.P.VARGHESE, S/O. KURIAN, HOUSE NO.16/3000, MELAKAYILHOUSE, THRIPUNITHURA P.O., ERNAKULAM.. BY ADV. SRI.BIJU M.JOHN RESPONDENT(S): --------------- 1. K.PRASANNA KUMAR, S/O. BHASKARAN NAIR, KANNATTUMADOM, KALAVAMKODAM P.O., CHERTHALA. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. SRI.JOHN JOSEPH FOR R1 SRI.G.N.NAIR FOR R1 P.P. MR.PUZHAKKARA MUHAMMED FOR R2. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.P. No. 3417 of 2001 in Crl.R.P. No. 724 of 2001 Dismissed. 5-10-2009 Sd/- P.Q.Barkath Ali, Judge. P.Q. BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P.No.724 of 2001 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 5th day of October, 2009 O R D E R The revision petitioner is the accused in C.C.No.43 of 1995 of Judicial Magistrate of the First Class-I, Cherthala and the appellant in Crl.A.No.71 of 2000 of the Addl. Sessions Judge, Alappuzha. He was convicted for the offence punishable under Sec.138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for three months and to pay fine of Rs.3,000/-, in default to undergo simple imprisonment for one month. Out of fine amount, if realized, Rs.2,000/- was ordered to be paid to the complainant as compensation as provided under section 357(1)(a) of the Code of Criminal Procedure. On appeal by the accused, the lower appellate court confirmed the conviction and sentence. The accused has come up in revision challenging his conviction and sentence. 2. The case of the 1st respondent/complainant, as testified by him as PW1 before the trial court and as detailed in the complaint, was that the accused borrowed Rs.29,000/- from the complainant on June 19, 1994 and to discharge that liability, the accused issued Ext.P1 cheque dated June 30, Crl.RP 724/01 2 1994, drawn on the Syndicate bank, Kalamasseri Branch which, when presented for encashment, was dishonoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of notice Ext.P3 dated November 25, 1994, the accused did not repay the amount, which is an offence punishable under section 138 of the Negotiable Instruments Act. 3. On receipt of the complaint, the trial court recorded the sworn statement of the complainant and took cognizance of the case. On appearance before the trial court, the accused pleaded not guilty to the charge under section 138 of the Negotiable Instruments Act. PWs.1 and 2 were examined and Exts.P1 to P7 were marked on the side of the complainant. When questioned under section 313 Cr.P.C., the accused denied the entire transaction and submitted that he was a packing trainee in the company in which the complainant was the Administrative Officer, that at the time of joining the company, the complainant has deposited Rs.30,000/- as security, that when the complainant left the company, as the Managing Director was out of station, the accused issued cheque Ext.P1 as security and that therefore the accused has not committed any offence. On his side, DWs.1 and 2 were examined and Ext.D1 was marked. 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, Crl.RP 724/01 3 convicted him thereunder and sentenced him as aforesaid, which was confirmed in appeal. The accused has come up in revision challenging his conviction and sentence. 4. 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, which is confirmed in appeal by the appellate court, can be sustained? 2) Whether the sentence imposed against the revision petitioner is excessive? 5. The 1st respondent/complainant, to prove his case, examined himself as PW1 and produced Exts.P1 to P7 before the trial court. I have gone through the evidence of PW1. Nothing was brought out in his cross- examination to discredit his evidence. Further, his evidence is supported by Exts.P1 to P7 and also by the evidence of PW2 Bank Manager. To prove that cheque Ext.P1 was issued as security, the revision petitioner/accused examined DWs.1 and 2 and produced Ext.D1. DW1 is the Production Manager in the 'AARK Synthetics Ltd., Cochin, where the revision petitioner was the Administrative Officer. DW2 is the Managing Managing Director of the said firm. The trial court as well as the lower appellate court disbelieved their evidence for convincing and cogent reasons. I have gone through their evidence. I am in agreement with the findings of the trial court Crl.RP 724/01 4 and the lower appellate court that they are interested witnesses and could not be believed. 6. That apart, the issuance of cheque Ext.P1 is admitted by the revision petitioner/accused. Therefore, presumption envisaged under sections 118 and 139 of the Negotiable Instruments Act is available for the 1st respondent/complainant. The revision petitioner/accused has not rebutted the above presumption. For all these reasons, accepting the evidence of complainant PW1, I confirm the conviction of the revision petitioner under section 138 of the Negotiable Instruments Act. 7. As regards the sentence, the trial court has imposed a sentence of simple imprisonment for three months and to pay fine of Rs.3,000/-, in default to undergo simple imprisonment for a further period of one month. The lower appellate court confirmed the said sentence. The revision petitioner is now aged 75 and is laid up. Further, the transaction is of the year 1991. Taking into consideration all these aspects, I feel that sentence of fine of Rs.29,000/-, being the cheque amount, and in default to undergo simple imprisonment for two months would meet the ends of justice. 8. In the result, the revision petition is allowed in part. The conviction of the revision petitioner by both the courts below under section 138 of the Negotiable Instruments Act is confirmed. The sentence is Crl.RP 724/01 5 modified to the effect that the revision petitioner is sentenced to pay a fine of Rs.29,000/-, in default to undergo simple imprisonment for two months. The fine amount, if realized, shall be paid to the 1st respondent/complainant as compensation as provided under section 357(1) of the Code of Criminal procedure. Two months time is granted for payment of fine. P.Q. BARKATH ALI, JUDGE mn Crl.RP 724/01 6 P.Q. BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Crl.R.P.No.724 of 2001 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- O R D E R 5th day of October, 2009