IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 20TH JUNE 2011 / 30TH JYAISHTA 1933 Crl.Rev.Pet.No. 760 of 2005(D) ------------------------------ CRA.442/2003 of SESSIONS COURT, KOTTAYAM DIVISION ST.2887/1999 of JUDL.MAGISTRATE OF FIRST CLASS-III, KOTTAYAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED:- ---------------------------------------- C.V.RAVINDRAN, AISWARYA COLD STORAGE, CHINGAVANAM P.O., KOTTAYAM. BY ADV. SRI.ANTONY C. ETTUKETTIL RESPONDENT(S): RESPONDENTS & COMPLAINANT/SATE: -------------------------- 1) SREE GOKULAM CHIT AND FINACE CO. PVT. LIMITED, BRANCH OFFICE, PRAKKAT BUILDINGS, 1ST FLOOR, CENTRAL JUNCTION, KOTTAYAM-1, REP. BY ITS POWER OF ATTORNEY HOLDER, MR.M.M.ALEX. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, KOTTAYAM. ADV. SRI.K.S.BABU FOR R1 SMT.N.SUDHA FOR R1 PUBLIC PROSECUTOR SRI.SABU SREEDHARAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Crl.R.P. No. 760 of 2005 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 20th day of June, 2011 O R D E R Revision petitioner is the accused in S.T.Case No.2887/1999 on the file of the Judicial Magistrate of the First Class-III, Kottayam and appellant in Crl.A.No. 442/2003 on the file of the Sessions Court, Kottayam Division. He was convicted under section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for three months and to pay compensation of ` 1,14,388/- to the complainant by the learned Magistrate. On appeal by the accused, the lower appellate court confirmed his conviction and sentence. The accused has come up in revision challenging his conviction and sentence. 2. The first respondent/complainant is Sree Gokulam Chit and Finance Co. Pvt. Ltd., represented by its Power of Attorney Holder PW1. The case of the first respondent/complainant, as testified by PW1 Power of CRRP 760/2005 2 Attorney Holder before the trial court and as detailed in the complaint, in brief, is this:- The accused was a subscriber of two “chitties” conducted by the complainant company. The accused bid the kurries and received the amount, but later defaulted the instalments. For the amount due from him, the accused issued cheque Ext.P2 dated April 22, 1999 for ` 1,14,388/- which when presented for collection was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank. In spite of Ext.P5 notice dated May 20, 1999, the accused did not re-pay the amount. Therefore, the claimant filed the complaint before the trial court under section 138 of the Negotiable Instruments Act. 3. On receipt of the complaint, the learned Magistrate recorded the sworn statement of PW1, the Power of Attorney Holder of the company, and took cognizance of the offence. The accused, on appearance before the trial court, pleaded not guilty to the charge under section 138 of the Negotiable Instruments Act. PW1 was examined and Exts.P1 to P10 were marked on the side of the complainant. When questioned under section 313 Cr.P.C. by the learned CRRP 760/2005 3 Magistrate, the accused submitted that two persons claimed to be the agents of the complainant company approached him and on believing their words ,he executed and entrusted to them a signed blank cheque and a promissory note and the said cheque was misused by the complainant company and created Ext.P2. He got himself examined as DW1. He produced Exts.D1 and D2 before the trial court. 4. 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, convicted him thereunder and sentenced him as afore said. On appeal by the accused, the lower appellate court confirmed his conviction and sentence. The accused has come up in revision challenging his conviction and sentence. 5. Heard the learned counsel for the revision petitioner and the learned counsel for the first respondent/complainant. 6. The following points arise for consideration :- 1) Whether the conviction of the revision CRRP 760/2005 4 petitioner/accused under section 138 of the Negotiable Instruments Act can be sustained? 2) Whether the sentence imposed on the revision petitioner/accused is excessive or unduly harsh ? 7. Point No.1:- PW1, the Power of Attorney Holder of the company, testified in terms of the complaint before the trial court. Nothing was brought out during cross- examination to discredit his evidence. Further, his evidence is supported by Exts.P1 to P10. 8. The case of the accused, as testified by him as DW1, was that two agents of the complainant company approached him to subscribe him to “chitty” conducted by the complainant company and that they obtained a signed blank cheque and a promissory and the complainant has misused the cheque and created Ext.P2. Except the interested version of DW1, there is no other evidence to prove the same. Both the courts below disbelieved the evidence of the accused. Further as the accused admits execution of Ext.P2, presumption, as envisaged under sections 139 and 118 of the Negotiable Instruments Act, is CRRP 760/2005 5 available to the complainant. No satisfactory evidence was adduced by the accused to rebut the above presumption. For all these reasons, I hold that both the courts below have rightly rejected the case of the accused and accepted the case of the complainant and found the accused guilty of the offence punishable under section 138 of the Negotiable Instruments Act. Therefore, I confirm the conviction of the revision petitioner under section 138 of the Negotiable Instruments Act . 9. Point No.2:- As regards the sentence, the trial court imposed a sentence of simple imprisonment for three months and to pay compensation of ` 1,14,388/- to the complainant, which was confirmed in appeal by the lower appellate court. The transaction is of the year 1999. Therefore, a lenient view is taken. In my view, a sentence of imprisonment till the rising of court and to pay compensation of ` 1,14,500/- with default sentence would meet the ends of justice 10. In the result, the revision petition is allowed in part. The conviction of the revision petitioner/accused CRRP 760/2005 6 under section 138 of the Negotiable Instruments Act rendered by the trial court which was confirmed in appeal by the lower appellate court is upheld. The sentence imposed on the revision petitioner is modified to the effect that he is sentenced to undergo imprisonment till the rising of court and to pay compensation of ` 1,14,500/- to the complainant. The counsel for the revision petitioner handed over a draft for ` 25,000/- to the counsel for the complainant during the pendency of the revision petition. It shall be adjusted towards the compensation ordered to be paid. His bail bonds are cancelled. Two months’ time is granted for payment of the compensation. The revision petitioner/accused shall surrender before the trial court on or before July 15, 2011 to suffer the sentence. P.Q.BARKATH ALI, JUDGE. mn CRRP 760/2005 7 P.Q.BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~ Crl.R.P. No. 760/2005 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~ O R D E R 20-6-2011