IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 1ST JULY 2011 / 10TH ASHADHA 1933 Crl.Rev.Pet.No. 2043 of 2003() ------------------------------ CRA.670/2002 of ADDL.SESSIONS COURT, (ADHOC), ERNAKULAM CC.1393/1999 of ADDL.CHIEF JUDICIAL MAGISTRATE (E & O),ERNAKULAM .................... REVN. PETITIONER/APPELLANT/ACCUSED --------------------- GOPINATHA KURUP KOIKKAL VEEDU PULIKANAKKU P.O. KAYAMKULAM BY ADV. SRI.C.P.UDAYABHANU RESPONDENTS/RESPONDENTS/COMPLAINANT --------------- 1. P.JANARDHANAN NAIR S/O PACHU PILLAI JANAKI MANDIRAM UDAYAMPEROOR 2. STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM ADV. SRI.R.ANIL FOR R1 PUBLIC PROSECUTOR SRI.JAIBY PAUL THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.P.NO.8305/2003 IN CRL.R.P.NO.2043/2003 DISMISSED 1-7-2011 Sd/-, P.Q.BARKATH ALI, JUDGE /True Copy/ PA to Judge P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.2043 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of July, 2011 ORDER Revision petitioner is the accused in C.C.No.1393/1999 on the file of Addl. Chief Judicial Magistrate ( Economic Offences) Court, Ernakulam and appellant in Crl.Appeal No.670/2002 of Addl. Sessions Court (Adhoc I), Ernakulam. The learned Magistrate by judgment dated September 16, 2002 convicted him under Section 138 of Negotiable Instruments Act and sentenced him to undergo simple imprisonment for four months and to pay a fine of Rs.50,000/-, in default to undergo simple imprisonment for three months. Out of the fine amount, Rs.48,000/- was ordered to be paid to the complainant as compensation. On appeal by the accused, the learned Sessions Judge by judgment dated June 24,2003 confirmed his conviction, but modified the sentence to fine of Rs.50,000/-, in default to undergo simple imprisonment for three months. The fine amount, if realised, was ordered to be paid as compensation to the complainant. The accused has now come up in revision challenging his conviction and Crl.R.P.No.2043/2003 2 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 the accused borrowed Rs. 40,000/- from him and to discharge that liability, he issued the cheque Ext.P1 dated December 25,1999 drawn on the Kayamkulam branch of State Bank of Travancore 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, 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 accused submitted that he borrowed only Rs.20,000/- from Crl.R.P.No.2043/2003 3 the complainant and issued a blank signed 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, the lower appellate court confirmed his conviction, but modified the sentence 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.2043/2003 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 as suggested during cross examination of PW1 and as stated by him when questioned under Section 313 Cr.P.C. was that he borrowed only Rs.20,000/- from the complainant and issued a blank signed cheque which was misused by the complainant and created Ext.P1. No evidence was adduced by him 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.2043/2003 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 four months and to pay a fine of Rs.50,000/-, in default to undergo simple imprisonment for three months. Out of the fine amount, Rs.48,000/- was ordered to be paid to the complainant as compensation. On appeal by the accused, the lower appellate court confirmed his conviction, but modified the sentence to fine of Rs.50,000/-, in default to undergo simple imprisonment for three months. The fine amount, if realised, was ordered to be paid as compensation to the complainant. I find no reason to interfere with the sentence imposed by the lower appellate court. That being so, I find no merit in this appeal and the same is hereby dismissed. In the result, the appeal is dismissed. Three months' time is granted for payment of fine amount. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.2043/2003 6 Crl.R.P.No.2043/2003 7