IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 3RD DECEMBER 2009 / 12TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 1054 of 2001() ------------------------------ ( CC.608/1997 OF JFCM-II, PERAMBRA CRA.NO.405/1998 OF SESSIONS COURT, KOZHIKODE) .................... REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------- M.SAJU, S/O KUTTYKRISHNAN NAMBIAR MADATHIL HOUSE, KOZHUKKALLOOR AMSOM AND MEPPAYUR DESOM KOYILANDY , KOZHIKODE BY ADV. SRI.SUNNY MATHEW RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE --------------- 1. P.N.SHANMUGHA DAS S/O NARAYANAN, EDACHERICHALIL CHANGAROTH AMSOM AND KADIYANGAD DESOM, KOZHIKODE 2. STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM ADV. SRI.JACOB ABRAHAM FOR R1 SMT.KOCHUMOL KODUVATH FOR R1 PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 1054 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of December, 2009 ORDER Revision petitioner is the accused in C.C.No.608/1997 of Judicial First Class Magistrate Court II, Perambra and appellant in Crl.Appeal No.405/1998 of III Additional Sessions Court, Kozhikode. He was convicted under Section 138 of Negotiable Instruments Act and was sentenced to undergo simple imprisonment for three months and to pay a fine of Rs. 20,000/- in default to undergo simple imprisonment for two mounts. Fine amount, if realised, was ordered to be paid to the complainant as compensation as provided under Section 357(1) Cr.P.C. On appeal by the accused, the lower appellate court confirmed his conviction and modified the fine to compensation as provided under Section 357(3) Cr.P.C. In addition to that, an amount Rs. 20,000/- was also ordered to be paid to the complainant as compensation. The accused has now come up in revision challenging his conviction and sentence. 2. The case of the first respondent/complainant as testified by Crl.R.P.No.1054/2001 Page numbers 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 on 31-05-1995 drawn on the Meppayoor 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.P3 dated 12/12/1995, 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. PWs 1 and 2 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 Crl.R.P.No.1054/2001 Page numbers revision petitioner guilty of the offence punishable under Section 138 of Negotiable Instruments Act, convicted him thereunder and sentenced him as aforesaid. The conviction of the revision petitioner under Section 138 of Negotiable Instruments Act is confirmed in appeal, 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 and the counsel for the first revision respondent. 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. PWs 1 and 2 were examined and Exts.P1 to P5 were marked on the side of the complainant to prove the guilt of the accused. Crl.R.P.No.1054/2001 Page numbers PW1 is the complainant. PWs 2 is the Managers of the bank. 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 P5 and the evidence of PW 2, the bank Manager. 8. The case of the accused was that his uncle one Raghavan Nambiar borrowed some amount from the complainant and as a security, the accused issued some blank signed cheques which was misused by the complainant and created Ext.P1. But no evidence is adduced by the accused to prove the above contention. As the accused admitted the execution of Ext.P1 cheque, presumptions under Sections 118 and 139 of Negotiable Instruments Act are available for the complainant. The accused did not adduce any evidence to rebut the above presumptions. Therefore, I am inclined to confirm the conviction of the revision petitioner under Section 138 of Negotiable Instruments Act. Point No.2 9. As regards the sentence, the trial court imposed a sentence Crl.R.P.No.1054/2001 Page numbers of simple imprisonment for three months and to pay a fine of Rs. 20,000/, in default to undergo simple imprisonment for two months. On appeal, the conviction of the revision petitioner was confirmed, but the sentence was modified to the effect that the fine imposed was modified as compensation as provided under Section 357 (3) Cr.P.C. In addition to that, he was also directed to pay an amount of Rs. 20,000/- as compensation to PW1 . The cheque amount is Rs. 40,000/- and the transaction is of the year 1995. Therefore, I feel that a sentence of imprisonment till the rising of court and a fine of Rs. 40,000/- would meet the ends of justice. In the result, revision petition is allowed in part. Conviction of the revision petitioner under Section 138 of Negotiable Instruments Act is confirmed. 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. 40,000/- in default to undergo simple imprisonment for a further period of three months . Fine amount, if realised, shall be paid to PW1 as compensation as provided under Section 357(1) Cr.P.C. The revision petitioner shall surrender before the trial court on or Crl.R.P.No.1054/2001 Page numbers before 30-12-2009 to receive the sentence. His bail bonds are cancelled. Two month's time is granted for payment of fine. If any amount is already deposited by the revision petitioner before the trial court, it shall be adjusted towards the fine amount and the complainant is entitled to withdraw that amount. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.1054/2001 Page numbers