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. 221 of 2002 ----------------------------- CRA.510/1998 of SESSIONS COURT, TRIVANDRUM CC.36/1996 of JUDL. MAGISTRATE OF FIRST CLASS-IV (MOBILE), TRIVANDRUM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- CHANGA VELAYUDHAN, K.P.9/260, DEEPA BHAVAN, CHENNILODE, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM. BY ADV. SRI.B.JAYASURYA RESPONDENT(S): RESPONDENTS ------------------------- 1. STATE OF KERALA, REP. BY THE DIRECTOR OF PROSECUTION, HIGH COURT OF KERALA. 2. S.ANANTHAKRISHNA, SAKTHI NIVAS, KALLAYAM P.O., THIRUVANANTHAPURAM. ADV. SRI.V.R.GOPU FOR R2 SRIC.R.SUDHEESH FOR R2 P.P. SRI.SABU SREEDHARAN FOR R1 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. 221 of 2002 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 20th day of June, 2011 O R D E R Revision petitioner is the accused in C.C.No.36/1996 on the file of the Judicial Magistrate of the First Class-IV (Mobile), Thiruvananthapuram and appellant in Crl.A.No. 510/1998 on the file of the Sessions Court, Thiruvananthapuram. He was convicted under section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for three months and to pay fine of ` 5,000/-, in default to undergo simple imprisonment for one month by the learned Magistrate. On appeal by the accused, the lower appellate court confirmed his conviction, but modified the sentence to undergo simple imprisonment for two weeks and to pay compensation of ` 90,000/- to the complainant. The accused has 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 CRRP 221/2002 2 the complaint, was that the accused borrowed ` 90,000/- from him and to discharge that debt, the accused issued cheque Ext.P1 dated July 29, 1995 drawn on Syndicate Bank, Statue (Main) Branch, Thiruvananthapuram for ` 90,000/- 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 Ext.P4 notice dated September 1, 1995, the accused neither re-paid the amount nor sent any reply. Therefore, the claimant filed the complaint before the trial court under section 138 of the Negotiable Instruments Act. 3. The accused on appearance before the trial court, pleaded not guilty to the charge under section 138 of the Negotiable Instruments Act. The complainant was examined as PW1 and the Manager of the bank as PW2 and Exts.P1 to P6 were produced by the complainant before the trial court. When the accused was questioned under section 313 Cr.P.C. by the learned Magistrate, his case was that signed blank cheques were kept in his office, as he was the Managing Editor of the CRRP 221/2002 3 Malayalam Kahalam News Paper, that the complainant who used to come there committed theft of some of signed blank cheques and misused one of them and created Ext.P1. DWs.1 and 2 were examined on the side of the defence. 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 but modified the sentence as stated above. The accused has come up in revision challenging her 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 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:- The complainant as PW1 testified in CRRP 221/2002 4 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 P6. 8. The case of the accused was that he was the Managing Editor of Malayalam Kahalam News Paper, that he used to keep signed blank cheques in his office and the complainant used to come there to visit him and that the complainant committed theft of signed blank cheques and misused one of them and created Ext.P1. In an attempt to prove the case of the accused, DWs.1 and 2 were examined before the trial court, but evidence of DWs.1 and 2 failed to prove the case of the accused. The accused did not sent any reply to Ext.P4 notice and no complaint was filed before the police regarding the alleged theft of cheques. Therefore, my view, the trial court as well as the lower appellate court is perfectly in rejecting the above case of the accused. Further, as the accused admits execution of Ext.P1, presumption, as envisaged under sections 139 and 118 of the Negotiable Instruments Act, is available to the complainant. For all these CRRP 221/2002 5 reasons, I am inclined to confirm the conviction of the revision petitioner/accused under section 138 of the Negotiable Instruments Act. Therefore, the conviction of the revision petitioner under section 138 of the Negotiable Instruments Act by the trial court which was confirmed in appeal is upheld. 9. Point No.2:- As regards the sentence, the trial court imposed a sentence of simple imprisonment for three months and to pay fine of ` 5,000/-, in default to undergo simple imprisonment for one month. The lower appellate court confirmed his conviction, but modified the sentence to undergo simple imprisonment for two weeks and to pay compensation of ` 90,000/- to the complainant. The transaction is of the year 1995. Therefore, a lenient view is taken and I feel that sentence of imprisonment till the rising of court and to pay compensation of ` 90,000/- 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 under section 138 of the Negotiable Instruments Act rendered by the trial CRRP 221/2002 6 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 ` 90,000/- to the complainant. Amount, if any, deposited by the revision petitioner before the trial court 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 221/2002 7 P.Q.BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~ Crl.R.P. No. 221 OF 2002 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~ O R D E R 20-6-2011