IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 25TH JUNE 2010 / 4TH ASHADHA 1932 Crl.Rev.Pet.No. 1050 of 2004(A) ------------------------------- CRA.133/2003 of SESSIONS COURT, THRISSUR CC.290/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, THRISSUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED. --------------------------------------- K.K.SIVADAS, S/O.KOCHUKUTTAN, AGED 41 YEARS, KUNNATH HOUSE, P.O.PERINGAVU, THRISSUR. BY ADV. SRI.C.A.CHACKO SMT.C.M.CHARISMA SMT.SONIYA.M RESPONDENT(S): COMPLAINANT AND STATE. ------------------------------------- 1. BENDY C.GEORGE, S/O.THEKKANATH CHERPPUKARAN GEORGE, IKANDA WARRIER ROAD, THRISSUR - 1. 2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKUALAM. ADV. SRI.D.ANIL KUMAR FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P. 1050 of 2004-A ------------------------------------------------------ Dated: JUNE 25, 2010 ORDER The challenge in this revision is to the judgment of the Judicial First Class Magistrate Court-I, Thrissur, in CC 290/2000 dated January 25, 2003 convicting the revision petitioner/accused under sec.138 of the Negotiable Instruments Act and sentencing him to undergo simple imprisonment for three months and to pay a compensation of Rs.38,000/-, in default to undergo simple imprisonment for three months. The conviction of the revision petitioner was confirmed in appeal by the Sessions Court, Thrissur, in Crl.A.133/2003 by judgment dated March 9, 2004, but the sentence was modified to imprisonment till the rising of court and to pay a compensation of Rs.55,000/-, in default to undergo simple imprisonment for three months. 2. The case of the revision 1st respondent/complainant as testified by him as PW.1 before the trial court and as stated in the complaint is that the accused borrowed Rs.38,000/- from him as a loan and to discharge that liability, the accused issued the cheque Ext.P1 dated November 22, 1999 which, when presented for CRL. R.P. 1050 of 2004-A 2 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.P3 dated December 4, 1999, the accused did not repay the amount. Therefore the complaint was filed by the complainant before the trial court under sec.138 of the Negotiable Instruments Act. 3. The Magistrate, on receipt of the complaint, 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 sec.138 of the Negotiable Instruments Act. The complainant was examined as PW.1 before the trial court and Exts.P1 to P5 were marked on his side. When questioned under sec.313 Cr.P.C. by the trial court, the accused denied the transaction. No defence evidence was adduced. 4. 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 the learned Sessions Judge confirmed the conviction, but modified the sentence as mentioned above. The accused has now come up in revision challenging his conviction and sentence. 5. Heard the counsel for the revision petitioner/accused and CRL. R.P. 1050 of 2004-A 3 the revision 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, which is confirmed in appeal, can be sustained? II. Whether the sentence imposed is excessive or unduly harsh? 7. PW.1, the complainant testified in a convincing manner before the trial court in terms of the complaint. No serious discrepancies or inconsistencies were brought out during his cross- examination to discredit his evidence. Further, his evidence is supported by Exts.P1 to P5. 8. The case of the accused as stated by him when questioned under sec.313 Cr.P.C. by the trial court and as suggested during cross- examination was that for the marriage of the sister of one Surendran, gold ornaments were purchased from a jewellery and that as security for the balance amount of Rs.10,000/-, Ext.P1 cheque was issued. But no evidence was adduced by the accused to prove his case. As the accused admits the execution of Ext.P1, the presumption under secs.118 and 139 of the Negotiable Instruments Act is available to the complainant. No evidence was adduced on the side of the accused CRL. R.P. 1050 of 2004-A 4 to rebut the said burden. 9. For all these reasons I am inclined to hold that the cheque Ext.P1 was issued by the accused to discharge his liability towards the complainant, 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.P3, the accused did not repay the amount which is an offence punishable under sec.138 of the Negotiable Instruments Act. Therefore I confirm the conviction of the revision petitioner/accused under sec.138 of the Negotiable Instruments Act. 10. As regards the sentence, the trial court imposed a sentence of simple imprisonment for three months and to pay a compensation of Rs.38,000/-, in default to undergo simple imprisonment for three months, which is modified by the lower appellate court as imprisonment till the rising of court and compensation of Rs.55,000/-. I find no special reason to reduce the sentence imposed by the lower appellate court. But, taking into consideration the fact that the cheque amount is Rs.38,000/-, I feel that a compensation of Rs.45,000/- would be reasonable in this case. In the result, the revision petition is allowed in part. The conviction of the revision petitioner under sec.138 of the Negotiable CRL. R.P. 1050 of 2004-A 5 Instruments Act rendered by the trial court which is confirmed in appeal is confirmed. The sentence imposed by the lower appellate court is also confirmed. But the compensation amount awarded is reduced to Rs.45,000/-, in default to undergo simple imprisonment for three months. Two months time is granted for payment of compensation. He is permitted to pay the compensation direct to the complainant and produce the receipt before the trial court. The accused/revision petitioner shall surrender before the trial court on or before 26.7.2010 to undergo the sentence. The amount, if any, deposited by the accused before the trial court shall be adjusted towards the compensation ordered to be paid. The bail bonds of the accused are cancelled. P.Q. BARKATH ALI, JUDGE mt/-