IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 22ND DECEMBER 2009 / 1ST POUSHA 1931 Crl.Rev.Pet.No. 1660 of 2002() ------------------------------ CRA.31/2000 of ADDL. SESSIONS COURT, (ADHOC), PALAKKAD ST.2407/1999 of JUDL.MAGISTRATE OF FIRST CLASS COURT, CHITTUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- T.K.GANGAN MENON, S/O. P.K.K.MENON, THERAMBATTIL, CHALAPURAM P.O., KOZHIKODE BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE ------------------------------------------------ 1. T.SURESH, S/O. P.V.RAJAGOPALAN NAIR, VALLANGHI NENMARA, CHITTUR, PALAKKAD. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.T.M.CHANDRAN FOR R1 PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.1660 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of December, 2009 ORDER Revision petitioner is the accused in S.T.No.2407/1999 of Judicial First Class Magistrate Court, Chittur and appellant in Crl.Appeal No.31/2000 of Additional Sessions Court, Fast Track Court No1, Palakkad. He was convicted under Section 138 of Negotiable Instruments Act and was sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 5000/- in default to undergo simple imprisonment for a further period of two months by the trial court. On appeal, his conviction was confirmed, but sentence was modified to the effect that he was sentenced to undergo simple imprisonment for two months and to pay a fine of Rs. 5,000/-. 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 complainant sold his pistol to the accused for Rs. 75,000/- under an Crl.R.P.No.1660/01 Page numbers agreement Ext.P2 dated May 15, 1997 . The licence of the pistol was changed into the name of the accused on July 28, 1997. Thereafter the accused issued the cheque Ext.P5 for Rs. 73, 999/- dated July 28, 1997 drawn on the State Bank of India, P.B.Division, Kozhikode towards the price of the pistol 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.P8 dated September 5, 1997, 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. PWs 1 and 2 were examined and Exts.P1 to P10 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 Crl.R.P.No.1660/01 Page numbers revision petitioner guilty of the offence punishable under Section 138 of Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid. On appeal his conviction was confirmed but the sentence was modified as aforesaid. The accused has now come up in revision challenging his conviction and sentence. 5. Heard the counsel for the revision petitioner and revision first 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 is confirmed in appeal can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? Point No.1 7. PWs 1 and 2 were examined and Exts.P1 to P10 were marked on the side of the complainant to prove the guilt of the accused. PW1 is the complainant and PW2 is the Assistant Bank Manager. The Crl.R.P.No.1660/01 Page numbers complainant as PW1 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 P10 and the evidence of PW2. 8. The case of the accused was that he gave the cheque Ext.P5 only as a security at the time of the purchase of the pistol from the complainant and that the said pistol was not working properly and that therefore he is not liable to pay any amount to the complainant. There is no substance in the above contention. No evidence is adduced by the accused to show that Ext.P5 cheque was issued only as a security . On the other hand, Ext.P4 agreement dated July 28, 1997 shows that the sale has become complete. Further the civil suit filed by the complainant O.S.No.143/2000 before the Sub Court, Palakkad was decreed in favour of the complainant which is not disputed. It clearly shows that the cheque Ext.P5 was issued not as a security, but as the price of the pistol sold. 9. For all these reasons, I hold that the trial court as well as the lower appellate court is perfectly justified in accepting the evidence Crl.R.P.No.1660/01 Page numbers 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 10. Regarding the sentence, the trial court imposed a sentence of simple imprisonment for six months and to pay a fine of Rs. 5000/- which was modified by the lower appellate court to simple imprisonment for two months and to pay a fine of Rs. 5,000/-. The transaction is of the year 1997. Therefore, I feel that a sentence of imprisonment till the rising of court and a fine of Rs. 80,000/- 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 fine of Rs. 80,000/- , in default to undergo simple imprisonment for three months. Out of the fine amount, if realised, Rs. 75,000/- shall be Crl.R.P.No.1660/01 Page numbers paid to the revision first respondent/complainant as compensation as provided under Section 357(1) Cr.P.C. The revision petitioner shall surrender before the trial court on or before January 30, 2010 to receive the sentence. Three month's time is granted for payment of fine. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.1660/01 Page numbers P.Q. BARKATH ALI, J. ------------------------------------------------------ Crl. M.Appln. 642 of 2010 in CRL.R.P. 1660 of 2002 ------------------------------------------------------ Dated: JANUARY 18, 2010 ORDER This is a petition filed by the accused in the above case under sec.482 of Cr.P.C. to reconsider the sentence imposed by this Court in the judgment dated 22nd December, 2009. 2. This Court has imposed a sentence of imprisonment till the rising of court and to pay a fine of Rs.80,000/-, in default to undergo simple imprisonment for three months, under sec.138 of the Negotiable Instruments Act. Now the petitioner has produced a document to show that he has paid the entire amount due under the cheque, which is also not disputed by the counsel for the 1st respondent/complainant. 3. The counsel for the 1st respondent/complainant has no objection in recalling and reviewing the judgment dated 22nd December, 2009 and for reducing the sentence. In the interests of justice also I feel that the sentence has to be reduced. 4. In the result, the petition is allowed. The judgment dated Crl.R.P.No.1660/01 Page numbers 22nd December, 2009 is recalled and reviewed and the sentence imposed is reduced to a fine of Rs.1000/-, in default to undergo simple imprisonment for one month. Time is granted till January 30, 2010 for payment of fine. P.Q. BARKATH ALI, JUDGE mt/- Crl.R.P.No.1660/01 Page numbers P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.1660/01 Page numbers