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. 1671 of 2003() ------------------------------ CRA.199/2002 of ADDL. SESSIONS COURT, ALAPPUZHA CC.311/1999 of JUDL.MAGISTRATE OF FIRST CLASS-II, CHERTHALA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- K.A.YOOSEF, AGED 56, S/O. KAPPALANDICKAL, C.M.C. III, CHERTHALA, ALAPPUZHA DISTRICT. BY ADV. SRI.J.OM PRAKASH RESPONDENT(S): RESPONDENT/COMPLAINANT AND STATE: ------------------------------------------------ 1. K.JOSEPH, AGED ABOUT 58, S/O. VARKEY, KALATHIPARAMBIL, EZHUPUNNA SOUTH P.O., CHERTHALA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.BENNY JOSEPH FOR R1 R2 BY 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.1671 of 2003 ------------------------------------------------------ Dated: DECEMBER 18, 2009 ORDER The revision petitioner is the accused in C.C. No.311/1999 of Judicial First Class Magistrate Court-II, Cherthala, and the appellant in Crl.A.199/2002 of Additional Sessions Court, Alappuzha. He was convicted under sec.138 of the Negotiable Instruments Act and was sentenced to undergo simple imprisonment for two months and to pay a fine of Rs.2000/-, in default to undergo simple imprisonment for a further period of 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 revision 1st respondent/complainant as testified by him as PW.1 before the trial court and as detailed in the complaint was that the accused borrowed Rs.20,000/- from him on November 3, 1998 promising to repay the same within one month and when demanded the accused issued the cheque Ext.P1 dated December 3, 1998 drawn on the Ezhupunna Service Co-operative Bank which, when presented for collection, was returned dishonoured for want of sufficiency of funds in the account of the revision petitioner in the bank and that in spite of the notice Ext.P4 dated January 7, 1999, the accused did not repay the amount, which is an offence Crl.R.P.1671/03 2 punishable under sec.138 of the Negotiable Instruments Act. 3. On receipt of the complaint the trial court recorded the sworn statement of the complainant/PW.1 and took cognizance of the offence. The accused on appearance before the trial court pleaded not guilty to the charge under sec.138 of the Negotiable Instruments Act. PW.1 was examined and Exts.P1 to P6 were marked on the side of the complainant. When questioned under sec.313 Cr.P.C. by the trial court, the accused denied the transaction and submitted that towards Rs.10,000/- due to the Secretary of the Ezhupunna Service Co-operative Bank, he has given a signed blank cheque and that even though he has paid the entire amount, the cheque was misused by the complainant and created Ext.P1. Dws.1 and 2 were examined and Ext.D1 was marked on the side of the accused. 4. The trial court on an appreciation of evidence found the revision petitioner guilty of the offence punishable under sec.138 of the 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. Heard the counsel for the revision petitioner and the revision 1st respondent/complainant. Crl.R.P.1671/03 3 6. The following points arise for consideration:- I. Whether the conviction of the revision petitioner under sec.138 of the Negotiable Instruments Act can be sustained? II. Whether the sentence imposed is excessive or unduly harsh? Point No.I 7. The complainant as PW.1 testified in terms of the complaint before the trial court and produced Exts.P1 to P6. No serious inconsistencies were pointed out during his cross-examination to discredit his evidence. Further his evidence is supported by Exts.P1 to P6. 8. The case of the revision petitioner/accused when questioned under sec.313 Cr.P.C. by the trial court was that he has given a signed blank cheque to the Secretary of the Ezhupunna Service Co-operative Bank for Rs.10,000/- due to him which was misused by the complainant and created Ext.P1. In an attempt to prove his case, he examined Dws.1 and 2 and marked Ext.D1. The trial court as well as the lower appellate court has disbelieved the evidence of Dws.1 and 2 for convincing and cogent reasons. I find no reason to come to a different conclusion. That apart, the issuance of Ext.P1 cheque was admitted by the revision petitioner. Therefore the presumption under Crl.R.P.1671/03 4 secs.118 and 139 of the Negotiable Instruments Act is available to the complainant. The revision petitioner has failed to rebut the above presumption satisfactorily. 9. For all these reasons accepting the evidence of PW.1 and rejecting the evidence of Dws.1 and 2 I hold that the trial court as well as the lower appellate court is perfectly justified in holding that the accused has committed an offence punishable under sec.138 of the Negotiable Instruments Act. I therefore confirm the conviction of the revision petitioner under sec.138 of the Negotiable Instruments Act. Point No.II 10. As regards the sentence, the trial court imposed a sentence of simple imprisonment for two months and to pay a fine of Rs.2000/-, in default to undergo simple imprisonment for a further period of one month, which is confirmed in appeal. The transaction is of the year 1998. Therefore I feel that a sentence of imprisonment till the rising of court and a fine of Rs.25,000/- would meet the ends of justice. In the result, the revision petition is allowed in part. The conviction of the revision petitioner under sec.138 of the Negotiable Instruments Act is confirmed. The sentence is modified to the effect Crl.R.P.1671/03 5 that he is sentenced to undergo imprisonment till the rising of court and to pay a fine of Rs.25,000/-, in default to undergo simple imprisonment for three months. Out of the fine amount, Rs.20,000/- shall be paid to the complainant/PW.1 as compensation as provided under sec.357(1) of Cr.P.C. The fine amount, if any, deposited by the revision petitioner before the trial court shall be adjusted towards the fine amount. His bail bonds are cancelled. Two months time is granted for payment of fine. The accused/revision petitioner shall surrender before the trial court on or before 15.2.2010 to receive the sentence. P.Q. BARKATH ALI, JUDGE CRL.M.A.7102 of 2003 Dismissed. 18.12.2009 P.Q. BARKATH ALI, JUDGE mt/-