IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 4TH DECEMBER 2009 / 13TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 358 of 2002() ----------------------------- (CRA .NO.514/2000 OF ADDL. SESSIONS COURT, N.PARAVUR CC.NO.53/1998 OF JFCM II, ALUVA) REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- SREEKUMAR, S/O.NEELAKANDA KURUP, SREEKALALAYATHIL, THURUTHUSERY KARA, NEDUMBASSERY VILLAGE, ALUVA TALUK. BY ADV. SRI.C.AJITH KUMAR (KALLESSERIL) RESPONDENT(S): RESPONDENTS/COMPLAINANT: --------------------------------------- 1. BABU GEORGE, S/O.GEORGE,CHULLY VEEDU, EDAKUNNU KARA, KARUKUTTY VILLAGE, ALUVA TALUK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.358 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of December, 2009 ORDER Revision petitioner is the accused in C.C.No.53/1998 of Judicial First Class Magistrate Court II, Aluva and appellant in Crl.Appeal No.514/2000 of Additional Sessions Court, North Paravur. He was convicted under Section 138 of Negotiable Instruments Act and was sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 2000/- in default, to undergo simple imprisonment for one month which is confirmed in appeal. 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. 95,000/- from the complainant on August 17, 1996 agreeing to repay it within one month, that when demanded the accused issued the cheque Ext.P1 for Rs. 95,000/- on September 19, 1997 drawn on Athani branch of Union Bank of India which when presented for collection was returned dishounoured for want of Crl.P.C.No.358/2002 Page numbers sufficiency of funds in the account of the accused in the bank and that in spite of notice Ext.P3 dated November 15, 1997, 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 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the accused denied the entire transaction. 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 of Negotiable Instruments Act , convicted him thereunder and sentenced him as aforesaid which is confirmed in appeal. The accused has now come up in revision challenging his conviction and sentence. 5. Counsel for the revision petitioner and the counsel for the Crl.P.C.No.358/2002 Page numbers first respondent were absent. Hence after perusing the records, judgment of trial court and lower appellate court, this revision petition is disposed of. 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. Complainant was examined as PW 1 and he produced Exts.P1 to P6 before the trial court to prove the guilt of the accused. He 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 P6. 8. The case of the accused as suggested during cross examination was that accused did not give any cheque to the Crl.P.C.No.358/2002 Page numbers complainant. But when questioned under Section 313 of Cr.P.C., the accused did not deny the execution of Ext.P1 cheque. Therefore the presumptions under Section 118 and 139 of Negotiable Instruments Act is available for the complainant. The accused has failed to rebut the above presumption by adducing necessary evidence. For all these reasons, in my view the trial court as well as the lower appellate court is justified in rejecting the contentions of the revision petitioner and accepting the case of the complainant and coming to the conclusion that accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. That being so, the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act is confirmed. Point No.2 9. As regards the sentence, the trial court imposed a sentence of simple imprisonment for six months and to pay a fine of Rs. 2000/-, in default, to undergo simple imprisonment for one month which is confirmed in appeal. Taking into consideration the fact that the transaction is of the year 1997 , I feel that a sentence of imprisonment Crl.P.C.No.358/2002 Page numbers till the rising of court and a fine of Rs. 95,000/- would meet the ends of justice. In the result, the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act by the trial court which is confirmed in appeal is upheld. 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. 95,000/-, in default, to undergo simple imprisonment for six months. Fine amount, if realised, shall be paid to the complainant as compensation as provided under Section 357(1) Cr.P.C. Revision petitioner shall surrender before the trial court on or before 30-12-2009 to receive the sentence. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.P.C.No.358/2002 Page numbers Crl.P.C.No.358/2002 Page numbers P.Q.BARKATH ALI JUDGE sv. Crl.P.C.No.358/2002 Page numbers