IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 21ST DECEMBER 2009 / 30TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 429 of 2003() ----------------------------- CRA.378/2001 of VI ADDL.SESSIONS COURT, ERNAKULAM ST.1456/1998 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOCHI .................... REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------- N.A.ABDUL JABBAR, MAVUMPARAMBIL HOUSE, KARUMALLOOR, PARUR TALUK. BY ADV. SRI.T.H.ABDUL AZEEZ SRI.K.P.MAJEED RESPONDENT(S): RESPONDENT/COMPLAINANT --------------- 1. T.K.DASAN, NP 1/457, THAYATHUPARAMBU, NAYARAMBALAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. SRI.K.S.MADHUSOODANAN FOR R1 SRI.T.N.SURESH FOR R1 PUBLIC PROSECUTOR SRI.K.J.MOHAMMED ANZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.429 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of December, 2009 ORDER Revision petitioner is the accused in S.T.No.1456/1998 of Judicial First Class Magistrate Court I, Kochi and appellant in Crl.Appeal No.378/2001 of VIth Additional Sessions Court, Ernakulam. He was convicted under Section 138 of Negotiable Instruments Act and was sentenced to undergo simple imprisonment for six months and to pay a compensation of Rs. 1,50,000/- in default to undergo simple imprisonment for a further period of two months by the trial court which is confirmed in appeal. The accused has now come up in revision challenging his conviction and sentence. 2. The case of the first respondent/complainant as testified by him as PW1 before the trial court and as detailed in the complaint was that accused borrowed Rs. 1,50,000/- from him and to discharge that liability the accused issued the cheque Ext.P1 on the said amount on May 25, 1998 drawn on the Paravoor branch of Nedungadi Bank Ltd. Crl.R.P.No.429/2003 Page numbers which when presented for collection was returned dishounoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of notice Ext.P3 dated May 30, 1998, the accused did not repay the amount which is an offence punishable under Section 138 of Negotiable Instruments Act. 3. On receipt of the complaint, the learned Magistrate 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 a charge under Section 138 of Negotiable Instruments Act. PW 1 was examined and Exts.P1 to P6 were marked on the side of the complainant. When questioned under Section 313 of 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 revision petitioner guilty of the offence punishable under Section 138 of Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid which is confirmed in appeal. The accused has now come up in revision challenging his conviction and sentence. Crl.R.P.No.429/2003 Page numbers 5. Heard the counsel for the revision petitioner and first revision respondent. 6. The following points arise for consideration : 1) Whether the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act rendered by the trial court which confirmed in appeal can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? Point No.1 7. The complainant was examined as PW1 and he produced Exts.P1 to P6 before the trial court to prove his case. He testified in terms of the complaint before the trial court. I have gone through his evidence. Nothing was brought out during his cross examination to disbelieve his evidence. Further his evidence is supported by Exts.P1 to P6. 8. The case of the accused was that he borrowed Rs. 50,000/- from the complainant and agreeing to repay it at the rate of Rs. 3,000/- Crl.R.P.No.429/2003 Page numbers per month and at that time he had issued a signed blank cheque which has been misused by the complainant and created Ext.P1. But no evidence is adduced by the accused to prove his case. Further the the issuance of cheque Ext.P1 is admitted by the accused. That being so, the presumption envisaged under Sections 118 and 139 of Negotiable Instruments Act is available for the complainant. No satisfactory evidence was adduced on the side of the accused to rebut the above presumption. For all these reasons, I hold that the trial court as well as the lower appellate court is perfectly justified in accepting the evidence of PW1 and coming to the conclusion that the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. Therefore, the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act is confirmed. Point No.2 8. Regarding the sentence, the trial court imposed a sentence of simple imprisonment for six months and to pay a compensation of Rs. 1,50,000/- which is confirmed in appeal. The transaction is of the year 1998. Therefore, I feel that a sentence of imprisonment till the Crl.R.P.No.429/2003 Page numbers rising of court and a compensation of Rs. 1,50,000/- would meet the ends of justice. In the result, the revision petition is allowed in part. Conviction of the revision petitioner under Section 138 of Negotiable Instruments Act is confirmed. The sentence is modified to the effect that he is sentenced to undergo imprisonment till the rising of court and to pay a compensation of Rs. 1,50,000/- as provided under Section 357(3) Cr.P.C, in default to undergo simple imprisonment for three months. The amount, if any, deposited by the accused before the trial court towards fine shall be adjusted towards the compensation awarded. The complainant/PW1 will be entitled to withdraw that amount. The revision petitioner shall surrender before the trial court on or before January 30, 2010 to receive the sentence. Two month's time is granted for payment of fine. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.429/2003 Page numbers