IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 18TH DECEMBER 2009 / 27TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 365 of 2003() ----------------------------- CRA.115/2000 of ADDL.SESSIONS COURT (SPL.CAURT), KOTTAYAM CC.293/1998 of JUDL.MAGISTRATE OF FIRST CLASS-II, KANJIRAPPALLY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- BOBY JOSEPH, KOCHUMALAYIL VEEDU, KALATHOOR P.O., KANAKKARI, KOTTAYAM. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE: ------------------------------------------------- 1. SHAJAN V. CYRIAC, CHUMAPPUNKAL, KUMARANALLOOR, KOTTAYAM. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.V.GEORGE(ONAKKOOR) FOR R1 SRI.REJI GEORGE FOR R1 PUBLIC PROSECUTOR SMT.REKHA C. NAIR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.365 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of December, 2009 ORDER Revision petitioner is the accused in C.C.No.293/1998/1997 of Judicial First Class Magistrate II, Kanjirappally and appellant in Crl.Appeal No.115/2000 of Additional Sessions Court (Spl), Kottayam. He was convicted under Section 138 of Negotiable Instruments Act and was sentenced to undergo simple imprisonment for one year by the trial court. On appeal by the accused, Sessions Court confirmed his conviction, but modified the sentence to the effect that he was sentenced to undergo simple imprisonment for seven days and to pay a compensation of Rs. 16,000/- to the complainant. 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 borrowed Rs. 15,000/- from the complainant and to discharge that liability, he issued the cheque Ext.P1 for Rs. 15,000/- dated January 31, 1998 drawn on the Kanakkari Service Co-operative Crl.R.P.No.365/2003 Page numbers Bank, Kanakkari branch 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 the notice Ext.P4 dated 14/05/1998, 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/PW1 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. PW 1 was examined and Exts.P1 to P6(c) were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the accused denied the entire transaction and stated that he received only Rs. 10,000/- which has already been paid by him and that at that time he has issued a blank signed cheque which was misused by the complainant and created Ext.P1. No defence evidence was adduced. 4. The trial court on an appreciation of evidence found the revision petitioner guilty of the offence punishable under Section 138 Crl.R.P.No.365/2003 Page numbers of Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid. On appeal his conviction was confirmed but the sentence was modified as mentioned above. 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 is 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. He produced Exts.P1 to P6(c) before the trial court. I have gone through the evidence of PW1. Nothing was brought out during his cross examination to disbelieve his evidence. Further his Crl.R.P.No.365/2003 Page numbers evidence is supported by Exts.P1 to P6(c). 8. The case of the accused was that he received only Rs. 10,000/- which he has already repaid and that complainant has misused the cheque given to him at that time and created Ext.P1. No evidence is adduced by the accused to prove his case. As the accused has admitted the issuance of cheque, the presumption under Section 118 and 139 of Negotiable Instruments Act is available for the complainant. No evidence was adduced by the accused to rebut the above presumption. For all these reasons, I am inclined to hold that trial court as well as the lower appellate court is justified in accepting the evidence of PW 1 and coming to the conclusion that accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. Therefore, I confirm the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act. Point No.2 9. Regarding the sentence, the trial court imposed a sentence of simple imprisonment for one month. On appeal, the sentence was reduced to simple imprisonment for 17 days and to pay a compensation Crl.R.P.No.365/2003 Page numbers of Rs. 16,000/-. The transaction is of the year 1998. Taking into consideration this aspect, 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. Out of the fine amount, if realised, Rs. 16,000/- shall be paid to the complainant as compensation as provided under Section 357 (1) Cr.P.C. The fine amount, if any, paid by the accused before the trial court shall be adjusted towards the fine imposed. The revision petitioner shall surrender before the trial court on or before 20-01-2010 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.365/2003 Page numbers Crl.R.P.No.365/2003 Page numbers Crl.R.P.No.365/2003 Page numbers P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.365/2003 Page numbers