IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 30TH NOVEMBER 2009 / 9TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 497 of 2001() ----------------------------- CRA.472/2000 of SESSIONS COURT, ERNAKULAM CC.253/1998 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... REVN. PETITIONER(S): APPELLANT/ACCUSED:- --------------------- P.A.SHAHUL HAMEED, FRUIT MARKET, OPP. POLAKANDAM MARKET, KARUVELIPADY, KOCHI-5. BY ADV. SRI.T.O.XAVIER RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE: --------------- 1) E.K. FRANCIS, ERASSERY VEEDU, KARUVELIPADY, COCHIN-5. 2) STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTORL HIGH COURT OF KERALA,ERNAKULAM. ADV. SRI.S.RAJKUMAR FOR R1 PUBLIC PROSECUTOR SMT. REKHA C. NAIR FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl..M.P. No.2318/2001 in Crl.R.P. No.497/2001 Dismissed 30-11-2009 Sd/-P.Q. Barkath Ali, Judge. /true copy/ P.S. to Judge. P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 497 of 2001 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 30th day of November, 2009 O R D E R Revision petitioner is the accused in C.C.No.253 of 1998 of the Judicial Magistrate of the First Class-II, Kochi and the appellant in Crl.A. No. 472 of 2000 of the Sessions Court, Ernakulam. He was convicted under section 138 of the Negotiable Instruments Act and sentenced to under go rigorous imprisonment for three months by the trial court. On appeal, the sentence was modified to the effect that he was sentenced to undergo imprisonment till the rising of court and to pay compensation of Rs.30,000/-, in default to undergo simple imprisonment for two months. Out of compensation, Rs.28,000/- was directed to be paid to the complainant as provided under section 357(3) Cr.P.C. The accused has now come up in revision challenging his conviction and sentence. 2. The case of the prosecution, as testified by him as PW1 before the trial court and as detailed in the complaint is that the accused to discharge his liability towards the complainant issued cheque Ext.P1 for Rs.26,000/- dated November 25, 1997, drawn on the State Bank of India, Kochi Branch Crl.R.P 497/01 2 which when presented for collection was returned dishonoured for want of sufficiency of funds in the account of the accused and that in spite of notice Ext.P3 dated November 29, 1997, he 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 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 the charge under section 138 of the Negotiable Instruments Act. PWs.1 to 3 were examined and Exts.P1 to P7 were marked on the side of the complainant. When the accused was questioned under section 313 Cr.P.C. by the learned Magistrate, he denied the entire transaction. On the side of the accused, DW1 was examined and Exts.D1 to D4 were marked. 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 there under and sentenced him as afore said. On appeal by the accused, the conviction was confirmed, but the sentence was modified as aforesaid. The accused has come up in revision challenging his conviction and sentence. 5. The following points arise for consideration :- 1) Whether the conviction of the revision petitioner under Crl.R.P 497/01 3 section 138 of the Negotiable Instruments Act, which was confirmed in appeal by the lower appellate court, can be sustained? 2) Whether the sentence imposed against the revision petitioner is excessive or unduly harsh? 6. PWs.1 to 3 were examined and Exts.P1 to P7 were marked on the side of the complainant to prove the guilt of the accused. PW1 is the complainant who testified in terms of the complaint before the trial court. I have gone through the evidence of PW1. Nothing was brought out in cross-examination to discredit his evidence. Further, his evidence is supported by Exts.P1 to P7 and PW2 the Manager of the bank. PW3 is the Post Woman attached to the Thoppumpady Post Office. Her evidence clearly shows that the address shown in the notice was correct and that the accused is known to her and that when intimation was given to the accused, he did not receive the notice. 7. The case of the accused, when questioned under section 313 Cr.P.C., was that he gave a cheque to one Manaf and misusing the same the complainant created Ext.P1. No evidence was adduced by the accused to prove his case. Further execution of cheque Ext.P1 is admitted by the accused. Therefore, presumptions under sections 118 and 139 of the Negotiable Instruments Act are available to the complainant. The accused Crl.R.P 497/01 4 was not able to rebut the above presumption effectively. An attempt was made on the side of the accused by examining DW1 one Babu to show that the address shown in the notice is not correct and that the accused has not conducted the shop as shown in Ext.D1. But both the courts have rejected the above case of accused. I find no reason to come to a different conclusion. For all these reasons, I feel that both the courts below are justified in believing the evidence of PW1 and coming to a conclusion that the accused has issued cheque Ext.P1 to discharge his liability to PW1 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 notice, the accused did not repay the amount and that thereby committed the offence under section 138 of the Negotiable Instruments Act. Therefore, I confirm the conviction of the accused under section 138 of the Negotiable Instruments Act. 8. Regarding the sentence, the accused was sentenced to undergo rigorous imprisonment for three months and to pay compensation of Rs.20,000/- to PW1. On appeal, the sentence was reduced to imprisonment till the rising of court and to pay a compensation of Rs.30,000/-, in default to undergo simple imprisonment for two months and out of the compensation Rs.28,000/- was ordered to be paid to the complainant and the Crl.R.P 497/01 5 balance was ordered to be credited to the State as compensation. I find no special reason to reduce the sentence. 9. In the result, the revision petition is dismissed. Two months’ time is granted for payment of compensation. The revision petitioner shall surrender before the trial court on or before 30-12-2009 to receive the sentence. His bail bonds are cancelled. P.Q.BARKATH ALI, JUDGE. mn. Crl.R.P 497/01 6 P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 497 of 2001 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= O R D E R 30th day of November, 2009