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. 272 of 2003(A) ------------------------------ CRA.289/1999 of ADDL.SESSIONS COURT-III, KOZHIKODE CC.585/1997 of JUDL.MAGISTRATE OF FIRST CLASS, VADAKARA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------- K.T.SUDESH S/O. VELAYUDHAN, 2/1372, NEAR CHERIYAPALAM, KARAPARAMBA P.O., NADAKKAVU, KOZHIKODE. BY ADV. SRI.K.PRAVEEN KUMAR SMT.C.M.CHARISMA RESPONDENT(S): RESPONDENTS/COMPLAINANT/STATE --------------- 1. N.P.C. ABDULLA S/O. IBRAHIM, PULLANTAVIDE HOUSE, V.V.ROAD, VADAKARA TALUK 2. STATE- REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.MOHANAN V.T.K. FOR R1 PUBLIC PROSECUTOR SRI.K.J.MOHAMMED ANZAR 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.No.272 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of December, 2009 ORDER Revision petitioner is the accused in C.C.No.585/1997 of Judicial First Magistrate Court, Vadakara and appellant in Crl.Appeal No.289/1999 of III Addl. Sessions Court, Kozhikode. He was convicted under Section 138 of Negotiable Instruments Act and was sentenced undergo simple imprisonment for six months by the trial court 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 towards Rs. 40,000/- due to the complainant , accused issued the cheque Ext.P1 dated June 12, 1997 drawn on the Chalappuram branch of Vijaya 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.P3 dated July 8, 1997, the accused did not repay the amount which is an offence Crl.R.P.No.272/2003 Page numbers 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. PWs 1 and 3 were examined and Exts.P1 to P8 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. Heard the counsel for the revision petitioner and revision first respondent. 6. The following points arise for consideration : 1) Whether the conviction of the revision Crl.R.P.No.272/2003 Page numbers 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. PWs 1 and 3 were examined and Exts.P1 to P8 were marked on the side of the complainant to prove the guilt of the accused. PW1 is the complainant. PW2 and 3 are the Bank Managers. PW1 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 P8 and the evidence of PWs 2 and 3. 8. The case of the accused was that he does not know PW1 and that to one Babu as a security for having received a sum of Rs. 10,000/-, the accused issued a blank signed cheque which was misused by the complainant and created Ext.P1. No evidence was adduced by the accused to prove his case. That part, as the accused has Crl.R.P.No.272/2003 Page numbers admitted the execution of Ext.P1 cheque, presumption under Sections 118 and 139 of Negotiable Instruments Act is available for the complainant. The accused has failed to rebut the above presumptions effectively. For all these reasons, I am inclined to confirm the findings of both the courts below that the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. Therefore, 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 which is confirmed in appeal. The transaction is of the year 1997. Counsel for the revision petitioner submits that accused is a cancer patient and is laid up. Taking into consideration these aspects, I feel that a fine of Rs. 40,000/- 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 Crl.R.P.No.272/2003 Page numbers that he is sentenced to pay a fine of Rs. 40,000/-, 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. Three month's time is granted for payment of fine. If any amount is deposited by the accused before the trial court towards fine amount, that shall be adjusted towards the fine imposed. Complainant will be entitled to withdraw that amount. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.272/2003 Page numbers P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.272/2003 Page numbers