IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 20TH OCTOBER 2009 / 28TH ASWINA 1931 Crl.Rev.Pet.No. 432 of 2001(B) ------------------------------------------ CRL.A.NO.420/2000 OF SESSIONS COURT, ERNAKULAM. CC.NO.496/1997 OF JUDL.MAGISTRATE OF FIRST CLASS-I, MUVATTUPUZHA. .................... PETITIONER/ APPELLANT/ ACCUSED: ------------------------------------------------------ E.S. ABOOBAKER, S/O. SYED, IDASSERIKUDI VEEDU, MANARI.P.O., PAYIPRA, MUVATTUPUZHA. BY ADVS. MR.P.V.SANTHOSH JOSE, MR.FRANCIS MATHEW. RESPONDENTS/ RESPONDENTS/COMPLAINANT: ----------------------------------------------------------------------- 1. PAULOSE VARGHESE, S/O. VARGHESE, OLIKKAL VEEDU, VAZHAPPILLIL KARA, VELLOORKUNNAM VILLAGE. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADVS. MR.BINDU (SASTHAMANGALAM), MR.R.JAYAKRISHNAN, R2 BY PUBLIC PROSECUTOR MR. C.M. KAMMAPPU. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/10/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P.No. 432 of 2001 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 20th day of October, 2009 O R D E R Revision petitioner is the accused in C.C.No.496 of 1997 of Judicial Magistrate of the First Class-I, Muvattupuzha and the appellant in Crl.A.No.420 of 2000 of the Sessions Court, Ernakulam. He was convicted for the offence punishable under Sec.138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for one month and to pay fine of Rs.5,000/-, in default to undergo simple imprisonment for another period of 15 days. Out of fine amount, if realized, Rs.4,000/- was ordered to be paid to PW1 as compensation. On appeal by the accused, his conviction was confirmed, but the sentence was modified to the effect that he was sentenced to undergo simple imprisonment for five days and to pay compensation of Rs.55,000/- as provided under section 357(3) Cr.P.C. Out of the fine amount Rs.52,000/- was ordered to be paid to the complainant as compensation. The accused has come up in revision challenging his conviction and sentence. 2. The case of the 1st respondent/complainant, as testified by him as PW1 before the trial court and as detailed in the complaint, was that the revision petitioner/accused issued cheque Ext.P1 for Rs.50,000/- dated Crl.R.P. 432/01 2 January 1, 1997, drawn on the State Bank of Travancore, Mulavoor-Paipra Branch, to the complainant towards the amount due to the complainant from the accused 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 notice Ext.P5 dated February 26, 1997, 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 the complainant and took cognizance of the case. On appearance before the trial court, the accused pleaded not guilty to the charge under section 138 of the Negotiable Instruments Act. PWs.1 and 2 were examined and Exts.P1 to P9 were marked on the side of the complainant. When questioned under section 313 Cr.P.C., the accused denied the transaction. No defence evidence was adduced. 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 aforesaid. On appeal, the conviction was confirmed but the sentence was modified as aforesaid. Now the accused has come up in revision challenging his conviction and sentence. 4. The following points arise for consideration :- Crl.R.P. 432/01 3 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 appellate court, can be sustained? 2) Whether the sentence imposed against the revision petitioner is excessive or unduly harsh ? 5. PW1 is the complainant and PW2 is the Branch Manager of the bank. I have gone through their evidence. Nothing was brought out in cross-examination to discredit their evidence. Further, their evidence is supported by Exts.P1 to P9. Therefore, I feel that the trial court as well as the lower appellate court was justified in believing their evidence. That apart issuance of cheque Ext.P2 is admitted by the accused. Therefore, presumption under sections 118 and 139 of the Negotiable Instruments Act is available to the complainant. No evidence was adduced by the accused to rebut the above presumption. The case of the accused was that he lost some of his cheques and that misusing those cheques PW1 created Ext.P1. There is no substance in the above case of the accused. He did not adduce any evidence to prove his case. Therefore, accepting the evidence of PWs.1 and 2, I hold that the trial court as well as the lower appellate court is right in convicting the revision petitioner under section 138 of the Negotiable Instruments Act. Therefore, his conviction under section 138 of the Negotiable Instruments Act is confirmed. Crl.R.P. 432/01 4 6. As regards the sentence, the transaction took place in 1997. Therefore, I feel that sentence of imprisonment till the rising of court and fine of Rs.55,000/- would meet the ends of justice. 7. In the result, the revision petition is allowed in part. The conviction of the revision petitioner by both the courts below under section 138 of the Negotiable Instruments Act is confirmed. The sentence is modified to the effect that the revision petitioner is sentenced to undergo imprisonment till the rising of court and as directed by the trial court he is sentenced to pay fine of Rs.55,000/-, in default to undergo simple imprisonment for one month. Out of the fine, Rs.52,000/- shall be paid to the complainant as compensation as provided under section 357(1) of the Code of Criminal procedure. Rs.25,000/-, if found deposited by the accused before the trial court, shall be adjusted towards the fine imposed. Two months' time is granted for payment of fine. The revision petitioner shall surrender before the trial court on or before 30-11-2009. His bail bonds are cancelled. P.Q. BARKATH ALI, JUDGE mn Crl.R.P. 432/01 5 P.Q. BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Crl.R.P.No.432 of 2001 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- O R D E R 20TH OCTOBER,2009