IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 23RD NOVEMBER 2009 / 2ND AGRAHAYANA 1931 Crl.Rev.Pet.No. 1032 of 2002() ------------------------------ ST.1155/1997 of JUDL.MAGISTRATE OF FIRST CLASS-II(MOBILE), ALAPPUZHA CRA.34/2000 of ADDL.SESSIONS COURT ADHOC-I (FAST TRACK), ALAPPUZHA .................... REVN. PETITIONER(S): ACCUSED ---------------------------- M.J.DEVASIA, MANELEL VEEDU, SOUTH ANGADI, CHERTHALLA. BY ADV. SRI.T.S.JOHN SRI.K.BALACHANDRAN (PN) RESPONDENT(S): RESPONDENTS :COMPLAINANT AND STATE -------------------------- 1. T.B.ARAVINDAKSHAN, THOPPIL VEEDU, THUMPOLY WARD, ALAPPUZHA. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.K.V.SADANANDA PRABHU FOR R1 SMT.R.REMJI FOR R1 PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.1032 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of November, 2009 ORDER Revision petitioner is the accused in S.T.No.1155/1997 of Judicial First Class Magistrate Court II, Alappuzha and appellant in Crl.Appeal No.34/2000 of Additional Sessions Adhoc - I (Fast Track) Court, Alappuzha. He was convicted under Section 138 of Negotiable Instruments Act and was sentenced to undergo simple imprisonment for three months by the trial court. On appeal, his conviction was confirmed, but sentence was reduced to simple imprisonment for 45 days. 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 accused borrowed Rs. 15,000/- from him and to discharge that liability the accused issued the cheque Ext.P1 dated December 5, 1996 drawn on Urban Co-operative Bank, Cherthala 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 Crl.R.P.No.1032/02 Page numbers notice Ext.P3 dated February 6, 1997, the accused did not repay the amount which is an offence punishable under Section 138 of Negotiable Instruments Act. 3. The complaint was initially filed before the Chief Judicial Magistrate Court, Alappuzha . On receipt of the complaint, the learned Magistrate recorded the sworn statement of the complainant and one witness CW1 and took cognizance of the case as S.T.No.78/1997 which was later made over to the trial court for trial and disposal. PWs 1 to 3 were examined and Exts.P1 to P7 were marked on the side of the complainant. The accused on appearance before the trial court pleaded not guilty to a charge under Section 138 of Negotiable Instruments Act. When questioned under Section 313 of Cr.P.C., the accused denied the entire transaction and submitted that he has handed over a signed blank cheque to one Babu and that the complainant has misused that cheque and created Ext.P1. To prove this aspect, he has examined DW1 before the trial court. 4. The trial court on an appreciation of evidence found the revision petitioner guilty of the offence punishable under Section 138 of Negotiable Instruments Act , convicted him thereunder and Crl.R.P.No.1032/02 Page numbers 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 counsel for the revision petitioner and first revision 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 confirmed in appeal can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? Point No.1 7. The complainant as PW1 testified in terms of the complaint before the trial court. Nothing was brought out during his cross examination to disbelieve his evidence. Further his evidence is supported by Exts.P1 to P7 and the evidence of PWs 2 and 3. The case of the accused was that he has handed over a blank signed cheque to one Babu and that complainant has obtained that cheque and created Crl.R.P.No.1032/02 Page numbers Ext.P1 . In an attempt to prove his case, he has examined DW1, an auto driver. But the said Babu was examined as PW3 on the side of the complainant. He has denied the entire case of the accused. Under these circumstances, in my view the trial court as well as the lower appellate court is perfectly justified in believing the evidence of PW1 and rejecting the case of the accused. That apart, the issuance of cheque Ext.P1 is admitted by the accused. That being so, the presumption under Section 118 and 139 of Negotiable Instruments Act is available for the complainant. No satisfactory evidence was adduced on the side of the accused to rebut the above presumption. Therefore, in my view the trial court as well as the lower appellate court is perfectly justified in accepting the evidence of PWs 1 to 3 and hold that Ext.P1 cheque was issued by the accused to discharge the liability towards the accused and that in spite of the notice Ext.P3 accused did not repay the amount which is an offence punishable under Section 138 of Negotiable Instruments Act. Therefore, I confirm his conviction under Section 138 of Negotiable Instruments Act. Point No.2 8. Regarding the sentence, the trial court imposed a sentence Crl.R.P.No.1032/02 Page numbers of simple imprisonment for three months . On appeal it is reduced to simple imprisonment for 45 days. The transaction is of the year 1997. Counsel for revision petitioner submitted that revision petitioner is aged about 80 years. Taking into consideration all these aspects, I feel that a sentence of imprisonment till the rising of court and a fine of Rs. 20,000/- 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. 20,000/-, in default, to undergo simple imprisonment for three months. Fine amount, if realised shall be paid to PW1 as compensation as provided under Section 357(1) Cr.P.C. The revision petitioner shall surrender before the trial court on or before 30-12-2009 to receive the sentence. One month's time is granted for payment of fine. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.1032/02 Page numbers