IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 21ST OCTOBER 2009 / 29TH ASWINA 1931 Crl.Rev.Pet.No. 635 of 2000() ----------------------------- CRA.227/1999 of V ADDL.SESSIONS COURT, ERNAKULAM ST.661/1997 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOCHI .................... REVN. PETITIONER(S): APPELLANT/FIRST ACCUSED --------------------- SOLOMON, S/O ANTONY CHARANGATTU HOUSE SOUTH CHELLANAM, KOCHI -5 BY ADV. SRI.PEEYUS A.KOTTAM SRI.ASHIK K.MOHAMMED ALI SRI.RENJITH THOMAS RESPONDENT(S): RESPONDENTS/COMPLAINANT --------------- 1. GOPALAN, S/O SANNALIAN MAVUNKAL PARAMBIL ANDIKADAVU P.O., KOCHI -8 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, ERNAKULAM ADV. SRI.GEO PAUL FOR R1 SRI.M.CHANDRASEN FOR R1 PUBLIC PROSECUTOR SMT.REKHA C. NAIR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/10/2009 ALONG WITH CRRP NO. 75 OF 2001 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.Nos.635 OF 2000 & 75 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of October, 2009 ORDER The revision petitioner in Crl.R.P.No.635/2000 is the first accused in S.T.Case No.661/1997 of Judicial First Class Magistrate Court I, Kochi and appellant in Crl.Appeal No.227/1999 of Vth Additional Sessions Court, Ernakulam and the revision petitioner in Crl.R.P.No.75/2001 is the second accused and appellant in Crl.Appeal No.222/1999. They were convicted under Section 138 of the Negotiable Instruments Act and to undergo simple imprisonment for three months each and a fine of Rs. 5,000/- each , in default, to undergo simple imprisonment for two months each under Section 138 of Negotiable Instruments Act. On appeal, the lower appellate court confirmed their conviction and sentence. Now the accused persons have come up in revision challenging their conviction and sentence. 2. The case of the first respondent/complainant as testified by him as PW1 and as detailed in the plaint before the trial court is that the accused persons borrowed Rs. 1,10,000/- from the complainant on Crl.R.P.Nos. 635/00 & 75/01 Page numbers June 7, 1995 , that regarding that transaction the first accused executed Ext.P1 agreement in favour of the complainant, that when demanded, the accused persons issued the cheque- Ext.P2 dated September 30, 1996 drawn on the Union Bank of India, Kannamaly branch which when presented for collection was returned dishonoured for want of sufficiency of funds in the account of the revision petitioners in the bank and that in spite of the notice- Ext.P4 dated December 9, 1996, the accused persons 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 PW1 and took cognizance of the case. The accused persons on appearance before the trial court pleaded not guilty to a charge under Section 138 of the Negotiable Instruments Act. PWs 1 to 3 were examined and Exts.P1 to P8 were marked on the side of the complainant. When questioned under Section 313 Cr.P.C by the trial court, the accused persons denied the transaction. On the side of the accused persons, DW 1 was examined. 4. On an appreciation of evidence, the trial court found the Crl.R.P.Nos. 635/00 & 75/01 Page numbers revision petitioners guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, convicted them and sentenced them as aforesaid which is confirmed in appeal. Now the accused persons have come up in revision challenging their conviction and sentence. 5. The following points arise for consideration : 1) Whether the conviction of the revision petitioners under Section 138 of the Negotiable Instruments Act by the trial court which is confirmed in appeal can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? Point No.1 6. On the side of the complainant, PWs 1 to 3 were examined and Exts.P1 to P8 were marked before the trial court. PW1 is the complainant . PW2 is the Manager of the Bank. PW3 is a witness to the agreement Ext.P1 . I have gone through the evidence of PW1. Nothing was brought out during his cross examination to discredit his evidence. Further his evidence is supported by Exts.P1 to P8 and PW Crl.R.P.Nos. 635/00 & 75/01 Page numbers 2, the Manager of the bank. Therefore I am of the view that the trial court is perfectly justified in believing his evidence. 7. Counsel for the revision petitioner in Crl.R.P.No.635/2000 argued that in the acknowledgment card Ext.P6 with respect to the first accused, no date of receipt is shown therein, but in Ext.P7 the postal acknowledgment card of second accused , the date of receipt is shown as December 19, 1996, that the notice was admittedly sent on December 9, 1996, that the first accused must have received the notice prior to December 19, 1996 and and that therefore the complaint is barred by limitation. I am unable to agree. No evidence is adduced on the side of the first accused to show when he received the notice Ext.P4. Therefore I find no merit in the contention of the revision petitioner that he has received Ext.P4 notice prior to 19-12-1996. No other point is argued before me. Therefore, I hold that the trial court as well as the lower appellate court is justified in believing the evidence of PWs 1 and 2 and holding that the cheque-Ext.P2 was issued by the accused persons to discharge their liability towards complainant which when presented for collection was returned Crl.R.P.Nos. 635/00 & 75/01 Page numbers dishonoured for want of sufficiency of funds in the account of the accused persons in the bank and that in spite of the notice Ext.P4, they did not repay the amount which is an offence punishable under Section 138 of the Negotiable Instruments Act. That being so, the conviction of the accused persons under Section 138 of the Negotiable Instruments Act has to be confirmed. Point No.2 8. Regarding the sentence, the trial court imposed a sentence of simple imprisonment for three months each and a fine of Rs. 5,000/- each, in default, to undergo simple imprisonment for two months each which is confirmed in appeal. The transaction is of the year 1996. Therefore, I feel that a fine of Rs. 1,10,000/- being the cheque amount would meet the ends of justice. 9. In the result, the conviction of the revision petitioners under Section 138 of the Negotiable Instruments Act is confirmed. They are sentenced to pay a fine of Rs. 55,000/- each, in default, to undergo simple imprisonment for two months each. Their bail bonds are cancelled. Two month's time is granted for payment of fine. Fine Crl.R.P.Nos. 635/00 & 75/01 Page numbers amount, if realised, shall be paid to PW1/complainant as compensation as provided under Section 357(1) Cr.P.C. Both the Criminal Revision Petitions are allowed in part. P.Q.BARKATH ALI JUDGE sv Crl.R.P.Nos. 635/00 & 75/01 Page numbers