IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 16TH NOVEMBER 2010 / 25TH KARTHIKA 1932 Crl.Rev.Pet.No. 646 of 2005(A) ------------------------------ CRA.89/2004 of ADDL.SESSIONS COURT, KOTTAYAM CC.396/1998 of JUDL. MAGISTRATE OF FIRST CLASS, VAIKOM .................... REVN. PETITIONER(S): ACCUSED: ----------------------------- C.K.KRISHNANKUTTY, RESHMA BHAVAN, THALAYOLAPARAMBU P.O., VAIKOM. BY ADV. SRI.DILIP MOHAN SMT.RIPSY PIUS RESPONDENT(S): COMPLAINANT AND STATE: ------------------------------------- 1. G.GOVINDANKUTTY, S/O. GOPINATHAN NAIR, LAKSHMI NIVAS,PACHALAM KARA,TRIKANARVATTOM VILLAGE KANAYANNOOR TALUK, ERNAKULAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.SURIN GEORGE IPE FOR R1 SRI.S.SUDARSANAN FOR R1 PUBLIC PROSECUTOR SRI.MUHAMMED PUZHAKKARA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.A.No.3321/2005 in Crl.R.P.No.646 of 2005 Dismissed 16-11-2010 Sd/-, P.Q.BARKATH ALI, JUDGE /True Copy/ P.A.to Judge P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.646 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of November, 2010 ORDER Revision petitioner is the accused in C.C.No.396/1998 on the file of Judicial First Class Magistrate Court, Vaikom and appellant in Crl.Appeal No.89/2004 of Addl. Sessions Court, Kottayam. He was convicted under Section 138 of Negotiable Instruments Act and was sentenced to undergo simple imprisonment for three months and to pay a compensation of Rs. 23,000/- to the complainant, in default to undergo simple imprisonment for a further period of one month by the learned Magistrate by judgment dated January 23, 2004. On appeal by the accused, the lower appellate court by judgment dated December 7, 2004 confirmed his conviction, but modified the sentence to simple imprisonment for one month. He was also directed to pay a compensation of Rs. 22,500/-, in default to undergo simple imprisonment for one month. The compensation amount, if realised, was ordered to be paid to the complainant. The accused has now come Crl.R.P.No.646/2005 2 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.30,000/- from the complainant and to discharge that liability, he issued the cheque Ext.P1 dated April 20, 1998 drawn on Thalayolaparambu Farmers Service Co-operative Bank which when presented for collection was returned dishounoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of notice Ext.P4 dated April 29, 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 P8 were marked on the side of the complainant. When questioned under Section 313 of Cr.P.C., the case of the accused was that he borrowed only Rs. 5,000/- Crl.R.P.No.646/2005 3 from one Ajith, a relative of the complainant and issued a signed blank cheque which was misused by the complainant and created Ext.P1. No defence evidence was adduced. 4. The learned Magistrate 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. 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 the counsel for the revision petitioner/accused and the counsel for the revision first respondent/complainant. 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 as PW1 testified in a convincing manner Crl.R.P.No.646/2005 4 before the trial court regarding the transaction. Nothing was brought out during his cross examination to disbelieve his evidence. Further his evidence is supported by Exts.P1 to P8. 8. The specific case of the accused when questioned under Section 313 Cr.P.C. by the learned Magistrate and as suggested during cross examination of PW1 was that he borrowed Rs. 5,000/- from one Ajith, a relative of the complainant and misusing the same, the complainant created Ext.P1. But no evidence was adduced by the accused to prove his case. Therefore, in my view, both the courts below are justified in rejecting the above case of the accused. Further, as the execution of the cheque Ext.P1 was admitted by the accused, presumption as envisaged under Section 118 and 139 of Negotiable Instruments Act is available to the complainant. No reliable evidence was adduced by the accused to rebut the above presumption. 9. For all these reasons, I am of the view that the trial court as well as the lower appellate court are perfectly justified in accepting the evidence of PW1 and finding that the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. Crl.R.P.No.646/2005 5 Therefore I confirm the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act. Point No.2 10. As regards the sentence, the Trial court imposed a sentence of simple imprisonment for three months and to pay a compensation of Rs.23,000/-, in default to undergo simple imprisonment for a further period of one month. On appeal, the lower appellate court modified the sentence to simple imprisonment for one month and to pay a compensation of Rs. 22,500/-, in default to undergo simple imprisonment for one month. As the transaction is of the year 1998, a lenient view is taken and I feel that a sentence of imprisonment till the rising of court and a compensation of Rs.30,000/- with default sentence would meet the ends of justice. In the result, revision petition is allowed in part. The conviction of the revision petitioner under Section 138 of Negotiable Instruments Act is confirmed. The revision petitioner is sentenced to undergo imprisonment till the rising of court and to pay a compensation of Rs. 30,000/-, to the complainant in default to undergo simple Crl.R.P.No.646/2005 6 imprisonment for a period of two months. The amount, if any, deposited by the revision petitioner before the trial court shall be adjusted towards the compensation amount ordered to be paid. The complainant is permitted to withdraw that amount. Two months' time is granted to the revision petitioner to pay the balance amount of compensation. The revision petitioner shall surrender before the trial court on or before 20/12/2010 to receive the sentence. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.646/2005 7 Crl.R.P.No.646/2005 8 Crl.R.P.No.646/2005 9