IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 4TH APRIL 2011 / 14TH CHAITHRA 1933 Crl.Rev.Pet.No. 487 of 2005(A) ------------------------------ CRA.237/1997 of II ADDL. SESSIONS COURT, TRIVANDRUM ST.38/1994 of ADDL. CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- V.NEELAKANTAN NAIR, PROPRIETOR, KRISHNA HOSPITAL, VIZHAVOOR, MALAYAM, MALAYINKEEZHU P.O., THIRUVANANTHAPURAM. BY ADV. SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.MANU V. RESPONDENTS: RESPONDENTS/STATE AND COMPLAINANT ------------------------------------------------ 1. THE STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR AT ERNAKULAM. 2. K.VISAKAN NAIR, PROPRIETOR, V.M.R. PHARMACEUTICALS, T.C.18/1963, THIRUVANANTHAPURAM. PUBLIC PROSECUTOR SRI.JAIB PAUL R2 BY ADV. SRI.S.CHANDRASENAN SRI.P.K.SOMARAJAN SRI.SUBASH GEORGE MANUEL THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------------------- Criminal Revision Petition No.487 of 2005 -------------------------------------------------------------------- Dated this the 4th day of April, 2011 JUDGMENT Revision Petitioner is the accused in S.T Case No.38/94 on the file of Additional Chief Judicial Magistrate, Thiruvananthapuram and the appellant in Criminal appeal No.237/97 on the file of Second Additional Sessions Court, Thiruvananthapuram. He was convicted under Section 138 of the Negotiable Instruments Act and sentenced to pay a fine of `.50,000/- in default undergo simple imprisonment for three months by the trial court by judgment dated August 16, 1997. Out of the fine amount `.37,210/-was ordered to go to the Government Revenue and `.12,790 was ordered to be paid to the complainant as compensation. Challenging this conviction and sentence the accused filed the appeal before the lower appellate Court. At the same time challenging the adequacy of the sentence the complainant filed Crl.R.P No.115/97 before the same Court. By a common judgment dated 17th June, 2004 the appellate Court confirmed his conviction, but modified sentence to pay a fine of `.40,000/- in default to undergo simple imprisonment for two months. The fine amount, if realized, was directed to be given to the complainant as compensation. The Criminal Revision Petition No.487 of 2005 2 accused has now come up in revision challenging his conviction and sentence. 2. The case of the second respondent/complainant, as testified by him as PW1 and as detailed in the complaint is thus: The complainant is the Proprietor of C.M.R. Pharmaceuticals, Thirumala P.O., Thiruvananthapuram. He is the distributor of pharmaceutical products to various hospitals. The appellant is the proprietor of Krishna Hospital (Krishna Clinic and Lab, Vizhavoor, MalayamP.O). The accused purchased medicines worth about `.37,210/- from the complainant and towards the price of the same, he issued the cheque, Exhibit P1, dated 25th December 1992 drawn on the United Bank of India, Thiruvananthapuram Branch. When the cheque was presented for collection it was returned dishonored for insufficiency of funds in the account of the accused in the bank. In spite of the notice Exhibit P3 dated June 15, 1993, the accused did not repay the cheque amount. Therefore the complainant filed a complaint before the trial court under Section 138 of the Negotiable Instruments Act. 4. The trial court on receipt of the complaint, 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 the charge under Section 138 of the Criminal Revision Petition No.487 of 2005 3 Negotiable Instruments Act. Pws 1 to 3 were examined and Exhibits P1 to P6 were marked on the side of the complainant. When the accused was questioned under Section 313 of Cr.PC by the learned Magistrate, he denied the entire transaction. No defence evidence was adduced. 5. 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 by the accused, the lower appellate court confirmed his conviction, but modified the sentence as mentioned above. The accused has come up in revision challenging his conviction and sentence. 6. Heard the learned counsel for the revision petitioner and the learned counsel for the 1st respondent. 7. The following points arise for consideration:- 1. Whether the conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act can be sustained? 2. Whether the sentence imposed is excessive or unduly harsh? 8. PW1, proprietor of the complainant firm, testified in terms of the complaint. Nothing was brought out in cross examination to discredit his evidence. Further, his evidence is supported by PWs 2 and 3 and Exhibits P1 to P6. 9. The case of the accused is that Exhibit P1 cheque was Criminal Revision Petition No.487 of 2005 4 issued for sales tax purpose and no amount was due from him to the complainant. There is no substance in the above contention. Accused did not adduce any evidence before the trial court to prove his case. Further as the accused admitted the execution of Exhibit P1 cheque presumption under Section 139 and 118 of Negotiable Instruments Act is available to the complainant. No satisfactory evidence was adduced by the accused to rebut the above presumption. Therefore, in my view the trial court as well as the lower appellate court are perfectly justified in accepting the evidence of PW1 to 3 and convicting the accused under section 138 of the Negotiable Instruments Act. 10. As regards the sentence, the trial court sentenced the accused to pay a fine of Rs.50,000/- and in default undergo simple imprisonment for three months. Out of the fine amount `.37,210/-was ordered to go to the Government Revenue and `.12,790 was ordered to be paid to the complainant as compensation. On appeal the lower appellate court confirmed his conviction and modified the sentence to a fine of `.40,000/- and in default to undergo simple imprisonment for two months. The entire fine amount, if realized was ordered to be given to the complainant as compensation. I find no special reason to reduce the sentence. Criminal Revision Petition No.487 of 2005 5 In the result the Criminal Revision Petition is dismissed. The conviction of the revision petitioner by the trial court which is confirmed by the lower appellate court and the sentence as modified by the lower appellate court are upheld. One month time is granted for payment of fine. His bail bonds are canceled. P.Q.BARKATH ALI, JUDGE. rkc