IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 5TH OCTOBER 2009 / 13TH ASWINA 1931 Crl.Rev.Pet.No. 887 of 2001() ----------------------------- CRA.121/1997 of ADDL.SESSIONS COURT, KOTTAYAM ST.291/1992 of JUDL.MAGISTRATE OF FIRST CLASS, PALA .................... REVN. PETITIONER(S): --------------------- P.J. CHACKO, PULICKAL PULIMOOTTIL VEEDU, MARANGATTUPALLI, PALA. BY ADV. SRI.BIJU ABRAHAM RESPONDENT(S): --------------- 1. DOMINIC ZACHARIAS PANNIKATTU VEEDU, MARANGATTUPALLI, PALA. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR. PUBLIC PROSECUTOR SMT.REKAH C. NAIR FOR R2 SRI.T.P.VARGHESE FOR R1 SRI.PHILIP T.VARGHESE FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.P. No. 4165 of 2001 in Crl.R.P. No. 887 of 2001 Dismissed. 5-10-2009 Sd/- P.Q.Barkath Ali, Judge. P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P.No. 887 of 2001 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 5th day of October, 2009 O R D E R The revision petitioner is the accused in S.T.No.291 of 1992 of the Judicial First Class Magistrate, Pala and the appellant in Crl.A.No.121 of 1997 of Sessions Court, Kottayam. He was convicted for the offence punishable under sec.138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for six months and to pay fine of Rs.50,000/- and in default to undergo simple imprisonment for three months by the trial court. Out of the fine amount, Rs.40,000/- was ordered to be paid to the complainant as compensation. On appeal by the accused, the lower appellate court confirmed the conviction, but modified the sentence to undergo simple imprisonment for one month and to pay a compensation of Rs.40,000/- to the complainant, as provided under section 357(3) of the Code of Criminal Procedure. Aggrieved by the above conviction and sentence, the accused has come up in revision. 2. The case of the 1st respondent/complainant, as testified by him as PW1 and as detailed in the complaint before the trial court, was that the accused borrowed an amount of Rs.40,000/- from him and to discharge that Crl.R.P.887/01 2 liability, the accused issued cheque Ext.P1 on September 2, 1991, drawn on the State Bank of Travancore, Marangattupally Branch, which when presented for collection, was returned for want of sufficiency of funds in the account of the accused in the bank and that in spite of notice Ext.P4, the accused 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 trial court recorded the sworn statement of complainant and took cognizance of the case. The accused, on appearance before the trial court, pleaded not guilty to the charge under section 138 of the Negotiable Instruments Act. PWs.1 and 2 were examined and Exts.P1 to P7 were marked on the side of the 1st respondent/complainant. When the revision petitioner/accused was questioned under section 313 Cr.P.C. by the trial court, he submitted that he borrowed only Rs.10,000/- from the complainant and issued blank signed cheque as security. Exts.D1 and D1(a) were marked on his side. The trial court, on an appreciation of the evidence, found the revision petitioner/accused guilty of the offence punishable under section 138 of the negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid. On appeal by the revision petitioner, the lower appellate court confirmed the conviction and modified the sentence as aforesaid. Crl.R.P.887/01 3 4. The following points arise for consideration in this revision :- 1) Whether the conviction of the revision petitioner under section 138 of the Negotiable Instruments Act by the trial court, which is confirmed in appeal by the lower appellate court, can be sustained? 2) Whether the sentence imposed against the revision petitioner is excessive? 5. The complainant was examined as PW1 and the Manager of the bank was examined as PW2 before the trial court. The complainant produced Exts.P1 to P7. I have gone through the evidence of PWs.1 and 2. I find no reason to suspect the credibility of PW1. Further, his evidence is supported by Exts.P1 to P7 and that of PW2 the Bank Manager. As regards the case of the revision petitioner that he borrowed only Rs.10,000/- and issued cheque Ext.P1 as security, both the courts below have rejected that contention. Accused produced Ext.D1 account book and Ext.D1(a) entry in Ext.D1. But there is nothing to show that the transaction mentioned in Ext.D1 and D1(a) relates to the transaction in question. That apart as PW1 admitted the issuance of the cheque Ext.P1, the presumptions envisaged under sections 118 and 139 of the Negotiable Instruments Act are available for the complainant. The accused was unable to rebut the above said presumptions effectively. Therefore, the trial court is perfectly justified in accepting the evidence of PW1 and rejecting the evidence of the accused Crl.R.P.887/01 4 and finding that to discharge the liability, the accused has issued cheque Ext.P1 in favour of 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 inspite of the notice Ext.P4, the revision petitioner did not repay the amount, which is an offence punishable under section 138 of the Negotiable Instruments Act. Therefore, the conviction of the revision petitioner by both the courts below has to be confirmed. 6. As regards the sentence, the trial court sentenced him to undergo simple imprisonment for six months and to pay fine of Rs.50,000/- and in default to undergo simple imprisonment for three months. The lower appellate court modified the sentence to undergo simple imprisonment for one month and to pay a compensation of Rs.40,000/- to the complainant under section 357(3) of the Code of Criminal Procedure. The accused is now aged 69. Further, the transaction took place in the year 1991. Taking into consideration all these aspects, I feel that fine of Rs.40,000/-, in default to undergo simple imprisonment for three months would meet the ends of justice. 7. In the result, the revision petition is allowed in part. The conviction of the revision petitioner under section 138 of the Negotiable Instruments Act is confirmed. The sentence imposed by the trial court which Crl.R.P.887/01 5 was modified by the lower appellate court is further modified to the effect that the respondent/accused is sentenced to pay fine of Rs.40,000/- and in default to undergo simple imprisonment for three months. If the fine amount is realized, it shall be paid to PW1 as compensation, as provided under section 357(1) of the Code of Criminal Procedure. Two months' time is granted to the revision petitioner to pay the fine amount. His bail bonds are cancelled. P.Q.BARKATH ALI, JUDGE. mn Crl.R.P.887/01 6 P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Crl.R.P.No. 887 of 2001 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- O R D E R 5 th day of October, 2009