IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 28TH SEPTEMBER 2010 / 6TH ASWINA 1932 Crl.Rev.Pet.No. 103 of 2004(C) ------------------------------ CRA.432/2002 of SESSIONS COURT, KOTTAYAM ST.124/1997 of JUDL.MAGISTRATE OF FIRST CLASS - I, ETTUMANOOR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- PIOUSE JOHN, KUNNASSERIL HOUSE, KADUTHURUTHY P.O., KOTTAYAM DISTRICT. BY ADV. SRI.NIREESH MATHEW RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. THOMAS JOHN, KUDUMBAKUZHIYIL VEEDU, KOODALLOOR P.O., KOTTAYAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.N.N.ELAYATH FOR R1 R2 BY PUBLIC PROSECUTOR SRI SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P. 103 of 2004 ------------------------------------------------------ Dated: SEPTEMBER 28, 2010 ORDER This revision is by the accused in S.T.No.124/1997 on the file of the JFCM Court, Ettumanoor. He was convicted under sec.138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for three months and to pay a compensation of Rs.3 lakhs to the complainant by the judgment of the learned Magistrate dated October 11, 2002. On appeal by the accused the Sessions Court, Kottayam, by judgment dated November 10, 2003 in Crl.A. 432/2002 confirmed his conviction and sentence. 2. The case of the revision 1st respondent/complainant as testified by him as PW.1 and as stated in the complaint before the trial court in brief is this: The revision petitioner/accused borrowed Rs.2,50,000/- from him and to discharge that liability issued the cheque Ext.P3 dated November 2, 1996 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 the notice Ext.P7 dated November 20, 1996, the accused did not repay the amount. Therefore the complainant filed the complaint under sec.138 of the Negotiable Instruments Act before the trial court. CRRP 103/2004 2 3. The learned Magistrate, on receipt of the complaint, recorded the sworn statement of the complainant/PW.2 and took cognizance of the offence. The accused on appearance before the trial court pleaded not guilty to the charge under sec.138 of the Negotiable Instruments Act. PWs.1 and 2 were examined and Exts.P1 to P8 were marked on the side of the complainant. When questioned under sec.313 Cr.P.C. by the trial court, the accused denied the transaction and submitted that the cheque was got executed from him under threat. On the side of the accused DWs.1 to 3 were examined and Exts.D1 and D2 were marked. 4. On an appreciation of evidence the learned Magistrate found the accused guilty of the offence punishable under sec.138 of the Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid. On appeal by the accused the learned Sessions Judge confirmed his conviction and sentence. The accused has now come up in revision challenging his conviction and sentence. 5. Heard the counsel for the revision petitioner/accused and the revision 1st respondent/complainant. 6. The following points arise for consideration:- I. Whether the conviction of the revision petitioner by the trial court under sec.138 of the Negotiable Instruments Act, which is confirmed in appeal, can be sustained? CRRP 103/2004 3 II. Whether the sentence imposed is excessive or unduly harsh? POINT NO.I 7. The revision 1st respondent/complainant as PW.2 testified in terms of the complaint before the trial court. Nothing was brought out in his cross-examination to discredit his evidence. His evidence is supported by PW.1, the Bank Manager, and Exts.P1 to P8. 8. The case of the revision petitioner/accused before the trial court was that the cheque was obtained from him under coercion. To prove his case, he examined DWs.1 to 3. DW.1 is a friend of the accused and DWs.2 and 3 are the police officials to whom he filed the complaint. The trial court as well as the lower appellate court have rejected their evidence. On going through their evidence, I find no reason to come to a different conclusion. Further, as the accused has admitted the execution of the cheque Ext.P3, the presumption under secs.118 and 139 of the Negotiable Instruments Act is available for the complainant. No satisfactory evidence was adduced by the accused to rebut the said presumption. Therefore I am of the view that the trial court as well as the lower appellate court are perfectly justified in accepting the evidence of the complainant and coming to the conclusion that the accused has committed an offence punishable under sec.138 of the Negotiable Instruments Act. Therefore the CRRP 103/2004 4 conviction of the accused under sec. 138 of the Negotiable Instruments Act is confirmed. POINT No.II 9. The trial court sentenced the accused to undergo simple imprisonment for three months and to pay a compensation of Rs.3 lakhs. Taking into consideration the fact that the transaction is of the year 1996 and that the accused and the complainant are close relatives, I feel that the fine of Rs.3 lakhs alone would meet the ends of justice. 10. In the result, the conviction and sentence of the revision petitioner/accused under Sec.138 of the Negotiable Instruments Act is confirmed. The sentence is modified to the effect that the accused is sentenced to pay a fine of Rs.3 lakhs, in default to undergo simple imprisonment for three months. The fine amount, if realised, shall be paid to the complainant as compensation as provided under Sec.357 (1) Cr.P.C. Time is granted upto 31.12.2010 for payment of fine. His bail bonds are cancelled. The Crl.R.P. is disposed of as found above. P.Q. BARKATH ALI, JUDGE mt/-